Saint Francis College v Al-Khazraji Brief for Respondent

    No. 85-2169

IN THE
SUPREME COURT OF THE UNITED STATES 

October 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 

for the Third Circuit

BRIEF FOR SEgPQNDENT

CAROLINE MITCHELL*
1705 Allegheny Building 
429 Forbes Avenue 
Pittsburgh, PA 15219 
(412) 232-3131

JULIUS LeVONNE CHAMBERS 
ERIC SCHNAPPER 

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Respondent
♦Counsel of Record



QUESTIONS PRESENTED
1. Does 42 U.S.C. § 1981 prohibit 

discrimination on the basis of ancestry?
2. Did the court of appeals err in 

refusing to apply retroactively that 
court's decision in Goodman v. Lukens

777 F.2d 113 (3d Cir. 1985)?Steel Co



TABLE OF CONTENTS
Page

Questions Presented .........  i
Table of Authorities ........  v
Statement of the Case .......  1
Summary of Argument .........  7
ARGUMENT ....................  13
I. The History of Federal 

Treatment of Individuals
of Non-European Ancestry 13

II. Section 1981 Prohibits 
1 Discrimination on the

Basis of Ancestry.....  3 6
A. Introduction........  3 6
B. The 1866 Civil Rights 

Act and the
Fourteenth Amendment . 46

C. The Etymology of the
word "Race" .........  50

D. The Legislative 
History of Section
1981 ................  73 f

ii



Page
E. The Difficulties In­

herent in Petitioners1 
Proposed Construction 
of Section 1981 ..... 88
(1) The Definition

of "Caucasian" .... 88
(2) Discrimination on 

the Basis of Color 99
III. The Court of Appeals

Properly Refused to Give 
Retroactive Effect to its 
Decision in Goodman v. 
Lukens Steel. 777 F.2d 13 
(3d Cir. 1985) ......... 103

Conclusion .................. 129

APPENDICES
Appendix A: Racial Classi­

fications Utilized by 
the Bureau of Immigration 
and Naturalization ..... la

Appendix B: Racial Tables 
in the Annual Reports 
of the Commissioner 
General of Immigration .. 4a

Appendix C: "Racial Classi­
fication," Report of the 
Commissioner General of 
Immigration: 1904, pp. 
161-62 ................. 9a

iii



Page
Appendix D: Dictionaries

Cited ..................  12a
Appendix E: Definitions of

"Race" .................  18a
Appendix F: Definitions of

"Kinsman," "Kinswoman,"
"Kin" and "Kindred" ....  28a

Appendix G: Definitions of
"Family" ...............  32a

Appendix H: Definitions of
"Lineage" ..............  3 6a

Appendix I: Definitions of
"Progeny" ..............  39a

Appendix J: Definitions of
"House" ................  41a

Appenidx K: Definitions of
"Gypsy" ................  44a

iv



TABLE OF AUTHORITIES

Cases: Page
Abdulrahim v. Gene B. Glick Co.,

612 F. Supp. 256 (C.D. Ind.
1985)   103

Alizadeh v. Safeway Stores, Inc.
41 FEP Cas. 1556 (5th Cir.
1986)   103

Anandam v. Fort Wayne Community 
Schools, 19 F.E.P. Cas. 773 
(N.D. Ind. 1978)   102

Annoya v. Hilton Hotels Corp.,
733 F.2d 48 (7th Cir. 1984) . 103

Anton v. Lehpamer, 787 F.2d 1141
(7th Cir. 1986) ............  Ill

Banker v. Time Chemical, Inc.,
579 F. Supp. 1183 (N.D. 111.
1983)   103

Bartholomew v. Fischl, 782 F.2d
782 F.2d 1148 (3d Cir. 1986).108,110

Baruah v. Young, 536 536 F.Supp.
356 (D.Md. 1982) ...........  103

Batson v. Kentucky, 90 L.Ed.2d
90 L. Ed. 2d 69 (1986) .....  69

v



Pace
Beacon Theatres v. Westover,

359 U.S. 500 (1959) ........
Chevron Oil Co. v. Huson, 404

43

U.S. 97 (1971) ...... 107,109,112-13
Davis v. United States Steel

Supply, 581 F.2d 333 (3d.
Cir. 1978) ............. 117,118,119

Delaware State College v. Ricks,
449 U.S. 250 (1980) ....5,39,121,127

DeVargas v. New Mexico, 97 N.M.
563, 642 P. 2d 166 (1982) ... 109

Dow v. United States, 226 F.
145 (4th Cir. 1910) ........ 28

Electrical Workers v. Robbins & 
Myers, Inc., 429 U.S. 229 
(1976) ..................... 126

Ex parte Dow, 211 F. 486
(E.D.S.C. (914) ............ 24

Fanner v. Cook, 782 F.2d 780
(8th Cir. 1986) ............ 108

Fitzgerald v. Larson, 741 F.2d
32 (3d Cir. 1984) .......... 119

Flores v. McCoy, 184 Cal. App.
2d 502, 9 Cal. Rptr. 349 
(1960) ..................... 34

Fong Yue Ting v. United States,
149 U.S. 698 (1893) ........ 69,70

vi



Page
Fullilove v. Klutznick, 448

U.S. 448 (1980) ............  47
Garcia v. Wilson, 731 F.2d 640

(10th Cir. 1984)............  114
Gibson v. United States, 781

F.2d 1334 (9th Cir. 1986) ... Ill
Gonzalez v. Stanford Applied 

Engineering, 597 F.2d 
1298 (9th Cir. 1979)   103

Goodman v. Lukens Steel Corp.
777 F.2d 113 (3d Cir.
1985)  1,12,106,116,122-25

Hernandez v. State, 251 S.W.
2d 531 (Tex. Crim. App.
1952)   36

Hernandez v. Texas, 347 U.S.
475 (1954)  35,36,47

Herrera v. People, 87 Colo.
360, 287 P.2d 643 (1930)   34

Hirabayashi v. United States,
320 U.S. 81 (1943)....... 8,47,48,69

Hurd v. Hodge, 334 U.S. 24
(1948)   9,49

Ibrahim v. New York Dept, of
Health, 581 F.228 (E.D.N.Y.
1984)   103

vii



In re Ahmed Hassan, 48 F.Supp.
843 (E.D. Mich. 1942)   8,32

In re Balsara, 171 F.294
(S.S.N.Y. 1909)   23,26

In re Dow, 213 F.335 (E.D.S.C.
1914)   26-27

In re Ellis, 179 F. 1002
(D. Ore. 1910)   24

In re Halladjian, 174 F. 834
(D. Mass. 1909)  8,23-25

In re Mozumdar, 207 F.2d 115
(E.D. Wash. 1913)   24

In re Mudarri, 176 F. 465
(D. Mass. 1910)   23

In re Najour, 174 F. 735
(N.D. Ga. 1909)   23

In re Shahid, 205 F. 812
(E.D.S.C. 1913)   24,28

In re Singh, 246 F. 496
(E.D. Pa. 1917)   24,28

In re Singh, 257 F.2d 209
(S.D.Cal. 1919)     24

Jackson v. City of Bloomfield,
731 F.2d 652 (10th Cir.
1984)  111,112

Page

viii



Page
Jawa v. Fayetteville State

University, 426 F.Supp. 218 
* (E.D.N.C. 1976)   102

Johnson v. Railway Express
Agency, 421 U.S. 454 (1975) ... 42

Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968)   39

Jones v. Bechtel, 788 F.2d 571
(9th Cir. 1986)   Ill

Jones v. Preuit & Mauldin,
763 F. 2d 1250 (11th Cir.
1985)   108

Jones v. Shankland, 800 F.2d
77 (6th Cir. 1986)   108

Khawaja v. Wyatt, 494 F.Supp.
302 (W.D.N.Y, 1980)   103

Korematsu v. United States,
323 U.S. 214 (1944)   69

Liotta v. National Forge Co.,
629 F.2d 903 (3d Cir. 1980) . 118

Maillard v. Lawrence, 54 U.S.
251 (1853)   50

Marks v. Parra, 785 F.2d
1419 (9th Cir. 1986)   109

Mayers v. Ridley, 465 F.2d 630
(D.C.Cir 1972) (en banc)....  44

ix



Page
McDonald v. Santa Fe Trail

Transportation Co., 427 
U.S. 273 (1976) ......... .. 37,99-101

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

Meyers v. Pennypack Woods Home 
Ownership Ass’n, 559 F.2d 
894 (3d Cir. 1977) ....... . ..117,118

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

Mozumdar v. United States,
229 F.240 (9th Cir. 1924) . 31

Mulligan v. Hazard, 54 U.S.L.W.
3808 (1986) ..............

Naraine v. Western Electric 
Co., 507 F.2d 590 (8th 
Cir. 1974)................

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

Oyama v. California, 332 U.S.
633 (1948) ...............

Plessy v.Ferguson, 163 U.S. 537 
(1896) .....................

Procunier v. Navarette, 434
U.S. 555 (1978) ..........

Quock Ting v. United States,
140 U.S. 417 (1891) ......

x



Page
Rajender v. University of

Minnesota, 24 F.E.P. Cas.
1051 (D. Minn. 1979)   102

Regents of University of
California v. Bakke, 438
U.S. 265 (1978)   70

Ricks v. Delaware State
College, 605 F.2d 710
(3d Cir. 1979)   5

Ridgway v. Wapello County,
Iowa, 795 F.2d 646 (8th
Cir. 1986)  111,125

Riggin v. Dockweiler, 104 P.2d
367, 15 Cal. 2d 651 (1940) .. 34

Rivera v. Green, 775 F.2d
1381 (9th Cr. 1985)   109

Saad v. Burns International 
Security Services, 456 
F.Supp. 33 (D.D.C. 1978) .... 103

Scott v. Sanford, 60 U.S.
19 (1857)   30

Sethy v. Alameda County Water 
Dist., 545 F.2d 1157
(9th Cir. 1988)   102

Shaare Tefila Congregation
v. Cobb, No. 85-2156 .......  44

Shah v. Halliburton, 627
F.2d 1055 (10th Cir. 1980) .. 102

xi



Page
Shah v. Mt. Zion Hospital, 642

F.2d 268 (9th Cir. 1981).... 102
Skehan v. Board of Trustees of 

Bloomsburg State College,
590 F.2d 470 (3d Cir.
1978)   118

Smith v. Pittsburgh, 764 F.2d
188 (3d Cir. 1985)  111,119

State v. Martinez, 673 P.2d
441, 105 Idaho 841 (1983) ... 34

State v. Quigg, 155 Mont.
119, 467 P.2d 692 (1970)   34

Sud v. Import Motors Limited,
Inc., 379 F.Supp. 1064
(W.D. Mich. 1974)   103

Takahashi v. Fish and Game 
Commission, 334, U.S.
410 (1948)   38

Tayyari v. New Mexico State 
University, 495 F.Supp.
1365 (D.N.M 1980)   103

United States v. Ali, 7 F.2d
728 (E.D. Mich. 1925)   31,32

United States v. Cartozian,
6 F.2d 919 (D. Ore. 1925) ... 31

United States v. Gokhale, 26
F.2d 360 (2d Cir. 1928) ....  31

xii



United States v. Khan, 1 F.2d
1006 (W.D.Pa. 1924) ........  31

United States v. Pandit, 15
F.2d 285 (9th Cir. 1926) ___ 31

United States v. Thind, 261
U.S. 204 (1923) ..... 8,14,15,28-33,

94,96,101,102
United States v. Wong Kim Ark,

169 U.S. 649 (1898)   39,70
Wilson v. Garcia, 85 L.Ed. 2d

254 (1985)  7,11,104-112,114-116,
119,122,124,125

Wycoff v. Menke, 773 F.2d 983
(8th Cir. 1985)  111,125

Yick Wo v. Hopkins, 118
U.S. 356 (1886)   39

Zuniga v. AMFAC Foods, Inc.
580 F.2d 380 (10th Cir.
1978)   109

Statutes and Constitutional 
Provisions:

42 U.S.C. §1981 .................  Passim
42 U.S.C. §1983 .............  104-05,114
Revised Statutes, §2169 .........  22,23

Page

xiii



Civil Rights Act of 1866 Passim
Page

Civil Rights Act of 1964, 
Title VII ......... .5,41-43,120,128

1 Stat. 103 ............
14 Stat. 27 ............
16 Stat. 256 ...........
39 Stat. 876 ...........
39 Stat. 877............
43 Stat. 159 ...........
66 Stat. 239 ...........
Seventh Amendment ......
Fourteenth Amendment ....

Legislative Materials:
Cong. Globe, 39th Cong., 

1st Sess. (1866) ... ..10,37,49,74-87
Cong. Globe, 34th Cong., 

1st Sess. (1856) ...
53 Cong. Rec. (1916) ....
Sen. Doc. No. 662, 61st Cong.,

3d Sess. (1911) ............  20

xiv



Sen. Doc. No. 747, 61st Cong., 
1st Sess. (1911) .......

Page
19,71

H.R. Rep. No. 95, 64th Cong.,
1st Sess. (1916) ...........  21

Dictionaries and
Encyclopedias:
American College Dictionary .....  65
W. Bolles, An Explanatory and 

Phonographic Pronouncing 
Dictionary of the English 
Language (1847)   55

Century Dictionary and
Cyclopedia (1911) .......  61-63

Chambers1 Twentieth Century
Definition of the English 
Language (1908)   64

H. Clark, A New and
Comprehensive Dictionary 
of the English Language 

(1855)   55
Encyclopedia Americana (1854) ....9,55-57
Encyclopedia Britannica (1878) ... 59-60
Encyclopedia Britannica (1910) ... 94
Encyclopedia Britannica (1963) ... 93,95-

96,98
Encyclopedia Brittanica (1986) ... 94,98

xv



Page
Funk and Wagnalls New College

Standard Dictionary (1947) .. 65
Samuel Johnson, Dictionary of

the English Language (1768) . 51
New American Cyclopaedia

(1858-63)  57-59,90-91
Odhams Dictionary of the

English Language (1946)   65
Oxford American Dictionary

(1980)   66
Oxford English Dictionary

(1933)   53
E. Partridge, Origins: A 

Short Etymological 
Dictionary of Modern
English (1966)   65

E.D. Price, the British Empire 
Dictionary of the English 
Language (c. 1899) ......  64

Random House Dictionary of
the English Language: the 
Unabridged Edition (1966) ... 66

A. Reid, A Dictionary of the
English Language (1846)   55

W. Skeat, An Etymological
Dictionary of the English 
Language (1910)   64

xv i



Page
D. Smalley, The American

Phoenetic Dictionary of the 
English Language (1855)   54,55

Thorndike Century Senior
Dictionary (1941)   65,66

Thorndike - Barnhart
Comprehensive Desk
Dictionary (1955)   65

N. Webster, An American
Dictionary of the English 
Language (1830)   52,53

Webster's Collegiate Dictionary
(1916)........................  63-64

Webster's Ninth New Collegiate
Dictionary (1985)   65,66

Webster's Second New
International Dictionary
(1956)   67,68

Webster's Seventh New
International Dictionary
(1963)   66

Webster's Third New
International Dictionary
(1981)   67-68

[Webster] William Wheeler,
Dictionary of the English 
Language (1876)   54,55

xvii



Page
E. Weekley, An Etymological 

Dictionary of Modern
English (1921) .............  64

Winston Simplified
Dictionary (1919) ..........  64

J. Worcester, A Universal
and Critical Dictionary of
the English Language (1846) . 54,55

H. Wyld, Universal Dictionary 
of the English Language 
(1932) .....................  64

Books:
M. Banton and J. Harwood, The

Race Concept (1975)   71
R. A. Billington, The

Protestant Crusade 1800 -
1860: A Study of the Origins
of American Nativism (1963) . 81

I.F. Blumenbach, Elements of
Natural History (1825)   93

F.L. Burdette, The Republican 
Party: A Short History 
(2d ed. 1972)   82 S.

S. C. Busey, Immigration: Its
Evils and Consequences
(1856)   10,80

xviii



Page
H.J. Desmond, The Know Nothing

Party (1904)   81
J.B. James, The Framing of the

Fourteenth Amendment (1908) . 82
A. Montague, The Concept of

Race (1964)   71
A. Montague, Man's Most

Dangerous Myth: The Fallacy
of Race (1942)   72

S.G. Morton, Types of Mankind
(1854)    90

A. Tennyson, Poems (1853)   52
M.E. Thomas, Nativism in the 

Old Northwest, 1850-60 
(1936)   81,82

Miscellaneous
Materials:
Annual Report of the

Commissioner - General of 
Immigration: 1899 ..........  16,17

Annual Report of the
Commissioner - General of 
Immigration: 1906 ..........  18

Bureau of the Census,
Fifteenth Annual Census of
the United States, 1930,
v. iii (1932) ..........  34

xix



Page
Immigration and Naturalization 

Service, Monthly Bulletin, 
v.l, no.4, (October, 1943) .. 33

Brief in Opposition, No. 406,
October Term, 1953  .... 36

Brief for Petitioner, No. 406,
October Term, 1953 .........  35

Brief for United States,
Wadia v. United States. 101
F. 2d 7 (2d Cir. 1939) ......  31

Note, Aliens' Right to Work:
State and Federal
Discrimination, 45 Fordham
L. Rev. 835 (1977) ......... 15

O'Connor, Constitutional
Protection of the Alien's 
Right to Work, 18 N.Y.U.L.Q.
Rev. 483 (1941) ............  15

X X



No. 85-2169

IN THE
SUPREME COURT OF THE UNITED STATES 

October 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 

for the Third Circuit

BRIEF FOR RESPONDENT 
STATEMENT OF THE CASE 

Respondent is a naturalized American 
citizen born in Iraq of Arab ancestry. 
Respondent came to the United States more 
than two decades ago to complete his 
education; he received his bachelor's



2
degree from Cornell University and his 
Ph. D. from the University of Wisconsin. 
Respondent was hired in 1971 as a member 
of the faculty of St. Francis College, 
and taught in the Sociology Department 
until 1979. In 1977 the Sociology 
Department unanimously recommended that 
respondent be awarded tenure; according 
to the complaint, in every other case in 
the history of the school such a 
unanimous departmental recommendation had 
been accepted by the college. (J. App. 
63). However, the complaint also alleged 
that as of 1978 St. Francis had never 
awarded tenure to any faculty member of 
non-European ancestry. (J. App. 63).

On February 10, 1978 the college's 
tenure committee, ignoring the views of 
respondent's own colleagues, urged that 
St. Francis College deny respondent



3
tenure; later that month the college's 
board of trustees voted to deny 
respondent tenure. Respondent requested 
that this decision be reconsidered, and 
in September 1978 the faculty senate 
voted to authorize the faculty affairs 
committee to review the recommendation of 
the tenure committee. The faculty 
affairs committee in January, 1979, 
recommended that the faculty senate 
request reconsideration of the tenure 
decision, and the senate did so. On 
February 6, 1979, however, the tenure 
committee met and decided not to 
reconsider respondent's application for 
tenure. (Pet. App. 2a-3a).

During 1978 and early 1979 
respondent contacted the Pennsylvania 
Human Relations Commission ("PHRC") and 
attempted to file a complaint of



4
discrimination. Although respondent
provided the Commission with written 
material documenting his allegation, PHRC 
expressly refused to formally "docket11 
any complaint. Prior to 198 0 it was 
PHRC1s express policy to refuse to 
process a complaint based on a denial of 
tenure until the complainant had ceased 
working for the school involved. (Pet. 
App. 3a-5a). On May 26, 1979,
respondent's employment by St. Francis 
college ended; 24 days later respondent 
duly filed a charge with PHRC. On May 
19, 1980,. however, PHRC dismissed
respondent's 1979 complaint as untimely, 
holding that he should have filed his 
charge in 1978, when PHRC itself had 
forbidden respondent to do so. (Pet. 
App. 3a-4a). PHRC's decision was
squarely contrary to then prevailing



5
third circuit law, which held that the 
Title VII limitations period began to 
run, not when an employee was denied 
tenure, but only when the employee ceased 
working for his or her employer. Ricks 
v. Delaware State College. 605 F.2d 7710 
(3d Cir. 1979), rev'd. 449 U.S. 250 
(December 15, 1980).

Following dismissal of his charge by 
PHRC, respondent obtained an EEOC right 
to sue letter, and commenced this action 
on October 30, 1980. Six weeks later 
this Court decided Delaware State College 
v. Ricks, holding that the discriminatory 
act in a case such as this is the final 
decision to deny tenure. 449 U.S. at 
256-59. The district court, applying in 
Ricks retrospectively, dismissed the 
Title VII claim as untimely. (Pet. App.. 
51a-55a). The court of appeals affirmed,



6
agreeing that Ricks should be applied 
retroactively. (Pet. App. 9a-12a).

Respondent also asserted a claim 
under 42 U.S.C. § 1981. The original pro 
se complaint, and subsequent amended 
complaints, asserted inter alia that 
respondent had been discriminated against 
because of his ancestry, Arabian, and his 
national origin, Iraqi. One of the 
complaints alleged that respondent had 
been denied tenure because of his " race 
(Arabian)." (J. App. 16, 22, 51). The
district court dismissed the complaint, 
holding that section 1981 does not forbid 
discrimination on the basis of ancestry. 
(Pet. App. 37a-39a) . The court of 
appeals reversed, holding that section 
1981 forbids discrimination against any 
•'group that is ethnically and 
physiognomically distinctive." (Pet.



7
App. 24a) . The court of appeals also
declined to apply retroactively Wilson v. 
Garcia. 85 L.Ed.2d 254 (1985) reasoning
that respondent had been entitled prior 
to Wilson to rely on "absolutely clear" 
circuit precedent establishing a longer 
period of limitations than is appropriate 
under Wilson. (Pet. App. 15a-16a).

SUMMARY OF ARGUMENT 
I. The interpretation of 

section 1981 must take into account the 
ease with which racial concepts can be 
manipulated to reflect popular 
prejudices. For most of the first half 
of this century the United States 
government insisted that Arabs were not 
"white". The Justice Department urged 
that "the average man in the street would 
find no difficulty in assigning to the 
yellow race a ... Syrian with as much



8
ease as he would bestow the designation 
on a Chinaman or a Korean." In re 
Hallad-iian. 174 F. 834, 838 (1909). This 
Court upheld that approach, insisting 
that the "whites" eligible for 
naturalization under federal law were 
generally limited to Europeans. United 
States v. Thind. 261 U.S. 204 (1923). 
Lower court decisions applying Thind 
refused to permit natural iza-t ion of Arabs 
because in part of their "dark skin." In 
re Ahmed Hassan. 48 F. Supp. 843, 845 
(E.D.Mich. 1942).

II. Section 1981, like the 
Fourteenth Amendment, prohibits 
discrimination on the basis of ancestry. 
Discrimination on the basis of ancestry 
is racial discrimination within the 
meaning of the Equal Protection Clause. 
Hirabavashi v. United States. 320 U.S.



9
81, 100 (1943). Section 1981 
presumptively prohibits the same types of 
discrimination forbidden by the 
Fourteenth Amendment. Hurd v . Hodge. 3 34 
U.S. 24 (1948).

A review of 50 English dictionaries 
printed between 1750 and 1985 
demonstrates that in 1866 "race" meant 
"ancestry" or "ethnic group." This usage 
is clearly reflected in mid-nineteenth 
century publications. The 1854 
Encyclopedia Americana. for example, 
characterized Arabs, Bedouins, Berbers, 
Hebrews, Tartars, Finns, and gypsies all 
as distinct races. (See pp. 55-57, 
infra). Members of the thirty-ninth 
Congress, which adopted the 1866 Civil 
Rights Act, referred variously to "the 
Scandinavian races," "the Chinese race,"
"the Latin races," "the Spanish race" and



10
the "Anglo-Saxon race." (See pp. 73-76, 
infra).

The 1866 Civil Rights Act was 
adopted in part to prohibit the sort of 
discrimination on the basis of ancestry 
which had been expressly advocated in the 
1850's by the Know Nothing Party. One 
prominent Know Nothing tract denounced 
the Germans and Irish as "degenerated 
races" unfit to live with native 
Americans. S. Busey, Immigration: Its
Evils and Consequences, p. 23, 39, 42
(1855) . In response to such proposals, 
Senator Shellabarger emphasized that the 
1866 Act would forbid discrimination 
against "the German race." Cong. Globe, 
39th Cong., 1st Sess., 1294.

Petitioners argument that
"Caucasians" are not "protected persons" 

insurmountable practicalpresents



11
problems. (Pet. Br. 16, 28) . By 1866 
ethnologists propounded a dozen different 
theories regarding the appropriate 
definition of Caucasian; under most 
classification systems neither Jews nor 
Arabs were then classified as Caucasian. 
The proposed definition of Caucasian has 
varied widely over the last 120 years; at 
the turn of the century, for example, 
Finns, Turks and Lapps were all regarded 
as orientals. It is inconceivable that 
the scope of the protections established 
by section 1981 shift with such changes 
in ethnological thinking.

III. Wilson v. Garcia. 85 L.Ed.2d 
254 (1985) , held that the appropriate 
limitations period for a section 1983 
action should be that established by 
state law for an action for damages for 
personal injuries. In Pennsylvania that



12
limitation period is two years. This 
Court has granted certiorari to decide 
whether the limitations rule in a section 
1981 case should be based on the 
limitation period applicable to a 
personal injury action, or to an action 
in contract. Goodman v. Lukens Steel 
Co.. No. 85-1626.

However Goodman may be resolved, it 
should not be applied retroactively to 
the instant case. As the court of 
appeals observed, when the instant case 
arose it was "absolutely clear" under 
third circuit decisions that a section 
1981 action was subject to a six year 
period of limitations in Pennsylvania. 
(Pet. App. 15a-16a). A circuit court's 
reading of its own past decisions is 
entitled to considerable deference. The 
minor changes that occurred in the



13
Pennsylvania statutes in 1978 did not 
vitiate the precedental significance of 
the third circuit's decisions.

ARGUMENT
I. THE HISTORY OF FEDERAL TREATMENT 

OF INDIVIDUALS OF NON-EUROPEAN 
ANCESTRY
The interpretation of section 1981, 

like that of the Equal Protection Clause, 
must take into account the ease with 
which racial concepts have in the past 
been manipulated to fit the prejudices of 
the day, and the danger that such changes 
could occur again. Over the course of 
modern history the problems of racial 
discrimination have been inextricably 
interrelated with shifting popular 
theories as to which groups constitute 
distinct races. Today few Americans 
would, out of either insensitivity or ill 
will, describe Arabs or Jews as a "race,"



14
or suggest that either group is somehow 
distinct from the "white race." But it 
was not always so.

Sixty-four years ago this Court 
ruled unanimously that a Caucasian native 
of the continent of Asia was, as a matter 
of federal law, not "white," and was thus 
absolutely ineligible for naturalization 
as a United States citizen, solely 
because his ancestry was Asian rather 
than European. United States v. Thind.
261 U.S. 204 (1923) . Although the
individual declared non'-white in that
case was an Asian Indian, both the
Department of Justice and the lower
courts interpreted Thind to mean that any 
Arab born in Asia was also as a matter of 
federal law non-white. An Arab or Indian 
excluded from naturalization by Thind was 
subject as a consequence to a host of



15
discriminatory state statutes, including 
laws barring such individuals from many 
public and private jobs, and from 
practicing a number of professions.3- In 
the instant case petitioners urge this 
Court to rule that employment 
discrimination against Asian Indians, 
Arabs and others is permitted by section 
1981, and to ground that result on a 
holding that Arabs, Indians, and other 
non-European "Caucasians'' are now, as a 
matter of federal law, to be declared to 
be officially "white."

The decision in Thind. and the 
Justice Department racial theories which 
Thind endorsed and perpetuated, had their 
roots in the virulent hostility that

1 See Note, Aliens' Right to Work: 
State and Federal Discrimination, 45 
Fordham L.Rev. 835 (1977); O'Conner, 
Constitutional Protection of the Alien's 
Right to Work, 18 N. Y.U.L.O. Rev. 483 (1941).



16
emerged at the turn of the century
towards the waves of immigrants then
arriving from southern Asia, northern
Africa, and central and southern Europe.
In 1899 the reports of the Bureau of
Immigration began to list new immigrants
by "race” as well as nationality; the
Bureau explained that

[A]n Englishman does not lose his 
race characteristics by coming from 
South Africa, a German his by coming 
from France, or a Hebrew his, though 
he come from any country on the 
globe.2

The 1899 report classified immigrants 
into 49 races, including "Syrian" and 
"Hebrew." Hispanics were divided into 
six races; "Spanish," "Cuban," "Mexican," 
"South American," "Central American" and 
"West Indian," and Italians were divided

2 Annual_____ Report_____ of_____ the
Commissioner-General of Immigration: 
1899, 5.



17
into two races "Italian (northern)" and 
"Italian (southern)."3 This official 
list of races remained in use by federal 
immigration authorities for over 35 
years, with the intermittent addition of 
additional races, including "Arabian" and 
"Spanish-American." (See Appendices A 
and B) . In 1904 the Bureau of 
Immigration promulgated an official 
ethnological theory, dividing these 49 
races into six "well-recognized 
divisions;" the Syrian race was placed in 
the Iberic division together with the 
Spanish and South Italian races, the 
Hebrew race was part of the Slavic 
division together with most eastern 
European races, and the North Italian 
race was classified in the Celtic 
division, which included the Irish and

3 Id. 6-7.



18
French races (See Appendix C) . In 1906 
the Bureau called attention to a 
"startling” shift in the sources of 
immigration away from northern European 
nations "inhabited by races nearly akin 
to our own;" southern and eastern Europe 
and Asia Minor, the Bureau warned, were 
the "racial sources [from which] the 
blood is drawn that is being constantly 
injected into the veins of our own 
race."4

In 1911 an Immigration Commission 
established by Congress issued an 
exhaustive report on the character of the 
new "races" of immigrants from central 
and southern Europe and asiatic Turkey. 
It concluded

The new immigration as a class is

4 Annual_____ Report_____ of_____ the
Commissioner-General of Immigration: 
1906, 5.



19
far less intelligent than the old 
... Racially they are for the most 
part essentially unlike the British, 
German, and other peoples who came 
here during the period prior to 
1880, and generally speaking they 
are actuated in coming by different 
ideals...5

The Commission recommend the imposition 
of a "limitation of the number of each 
race arriving each year to a certain 
percentage of the average of that race 
arriving during a given period of years." 
The Commission also urged that the 
immigration of undesirable races be 
curbed by adoption of a literacy 
requirement, explaining there were six 
races of immigrants half or more of whom 
could be turned away by means of this 
test, including the "Syrian," "Mexican," 
and "South Italian" races.6 The

5 Sen. Doc. No. 747, 61st Cong., 
1st Sess., 14 (1911).

6 Id. 47, 99.



20
Commission published a separate volume 
describing in detail the racial 
characteristics of over 600 different 
races, explaining, for example, that 
members of the North Italian race were 
"cool, deliberate, patient, practicable, 
and ... capable of great progress," while 
the South Italian race, "closely related 
to be Iberians of Spain and the Berbers 
of northern Africa," and possibly with 
"traces of African blood," was 
"excitable, . . . impulsive, highly 
imaginative, impracticable, having little 
adaptability to highly organized 
society." 7

The Commission's avowedly racial 
proposals soon became law. In 1917 a 
literacy test was enacted for the avowed

7 Sen. Doc. No. 662, 61st Cong. 3d 
Sess., 82 (1911).



21
purpose of excluding undesirable 
"races".8

8 The 1916 House Report, expressly 
relying on the 1911 Commission Report, 
explained that the literacy test was 
designed in particular to stem 
immigration by southern and eastern 
Europeans, particularly Italians, who it 
described as prone to "crimes of personal 
violence." H.R. No. 95, 64th Cong., 1st 
Sess., 4-5 (1916). Speaking in favor of 
the literacy requirement, Representative 
McKenzie explained that the newer 
immigrants were unlike the earlier 
"Anglo-Saxon, Celtic, and Germanic .. . 
races":

"The congenial assimilation of races 
so different in temperament and 
traditions as those of southern 
Europe and oriental countries with 
the races of northern and western 

• Europe is a practical
impossibility."

53 Cong. Rec. 4776-77 (1916). See also 
id. at 4783 (remarks of Rep. Hood) 
(citing Immigration Commission's racial 
views) 4789 (remarks of Rep. Vinson) 
(emphasizing "the difference between the 
north and south Italians"), 4796 (remarks 
of Rep. Wilson) (literacy test needed to 
end immigration of illiterate "European 
... races"), 4806 (remarks of Rep. Focht) 
(favors admission of "the Jew, the 
Armenian, and the Dago, and any other

(continued...)



22
39 Stat. 877. The 1917 act also created 
what came to be called the "Asiatic 
Precluded Zone," forbidding any 
immigration whatever from the Moslem 
regions of Asian Russia and part of the 
Arabian peninsula, as well as from Indo­
china and the Indian subcontinent. 39 
Stat. 876. Immigration quotas largely 
excluding non-Europeans were enacted in 
1924. 43 Stat. 159.

The same racial views that shaped 
federal policy towards future immigration 
also affected federal treatment of 
immigrants who had already reached our 
shores. The vehicle for the latter 
policy was section 2169 of the Revised 8

8(...continued)
race" only if literate), 4810-11 
(literacy of immigrant "races," including 
Syrian, etc.), 4881-3 (remarks of Rep. 
Chandler) criticizing racial purpose of 
literacy test).



23
Statutes, which provided that the 
procedures for naturalization were open 
only to "aliens being free white persons 
and to aliens of African nativity and to 
persons of African descent."9 Begin­
ning in 1909, the Department of Justice 
initiated an aggressive campaign to 
utilize section 2169 to prevent the 
naturalization of immigrants from 
southern and western Asia. Between 1909 
and 1923 a majority of the reported 
section 2169 cases involving non-Oriental 
Asians were directed at preventing the 
naturalization of Syrian Arabs.10

9 See 1 Stat. 103, 16 Stat. 256.
10 In re Balsara. 171 F. 294

(S.D.N.Y. 1909) (Indian; dicta forbidding 
naturalization of Arabs); In re Naiour. 
174 F. 735 (N.D.Ga. 1909) (Syrian Arab) ; 
In re Hallad~iian. 174 F. 834, 844 (D.
Mass. 1909) (Armenian; noting the 
existence of three unreported cases 
involving Arabs); In re Mudarri. 176 F.

(continued...)



24
The Justice Department's 

extraordinary racial theories were quoted 
at length in In re Halladiian. 174 F. 834 
(D.Mass. 1909). According to the 
government, the non-Negro peoples were 
divided into two races, the white or 
European race, and the "Asiatic or yellow 
race." 174 F. at 837-38. "European, or 
its analogous term white," the Department 
argued, referred

not merely to the local habitat of 
the person to who it applied, but 
... [to] the prevailing ideals, 
standards, and aspirations of the 
people of Europe. 174 F. at 837.

The "Asiatic or yellow race," included 10

10(...continued)
465 (D.Mass. 1910) (Syrian Arab); In re 
Ellis. 179 F. 1002 (D.Ore. 1910) (Syrian 
Arab); In re Shahid. 205 F. 812 (E.D.S.C. 
1913) (Syrian Arab); In re Mozumdar. 207 
F. 115 (E.D. Wash. 1913) (Indian); Ex
parte Dow. 211 F. 486 (E.D.S.C. 1914),
213 F. 355 (E.D.S.C. 1914) (Syrian Arab); 
In re Singh. 246 F. 496 (E.D.Pa. 1917)
(Indian); In re Singh. 257 F.2d 209 
(S.D.Cal. 1919) (Indian).



25
"substantially all the aboriginal peoples
of Asia." 174 F. at 838. The racial
identity of particular individuals,
according to the government, was self-
evident to ordinary citizens:

[T]he average man in the street ... 
would find no difficulty in 
assigning to the yellow race a Turk 
or Syrian with as much ease as he 
would bestow the designation on a 
Chinaman or a Korean. 174 F. at
838.

Asian Indians were to be excluded from 
naturalization, the United States 
contended, "because many Englishmen treat 
them with contempt and call them 
•niggers.'" 174 F. at 838. The Justice 
Department apparently agreed that the 
Jewish people, like Turks or Syrians, had 
their origins in Asia, but insisted that 
Jews were "white" because they had 
"become westernized and readily adaptable 
to European standards." 174 F. at 841.



26
The federal decisions holding that 

Arabs were not white relied primarily on 
the fact that their native Syria had in 
earlier times been occupied by the 
Mongols, and more recently by the Turks, 
who were then generally regarded as an 
oriental race.11 Syrians were said to 
have a complexion with "a yellow tinge 
more characteristic of the Turk and 
Mongol than the olive of southern 
Europe." In re Dow. 213 F. at 3 62 . 
While it was possible that some Arabs of 
the region had no such oriental blood, 
the court in Dow emphasized that "[t]here 
is no known ocular, microscopic, Philo­
logical, ethnological, physiological, or 
historical test that can settle the race

11 In re Shahid. 205 F. 812, 816
(E.D.S.C. 1913); In re Dow. 213 F. 355,
361-62 (E.D.S.C. 1914); see also In re
Balsara. 171 F. 294, 295 (S.D.N.Y. 1909).



27
of the modern Syrian." 213 F. at 3 62.
The Syrian petitioner in Dow argued in
vain that Arabs were members of the same
Semitic family as Jews, whose eligibility
for naturalization had not been
questioned. The court reasoned:

The European Jew has become 
racially, physiologically ,and 
psychologically a part of the 
peoples he lives among .... [N]o 
one can tell how much so-called 
Aryan blood runs in the veins of the 
modern European Jew.... The Jew of 
Northern Germany and Northern 
Russian is frequently blue eyed and 
fair haired.... But there are 
communities professing the Jewish 
religion in Northern Africa and the 
east who are as dark as Negroes or 
the peoples among whom they live, 
and who probably by intermixture of 
blood are physiologically the same. 
The European Jew is as white as the 
peoples among whom he lives and the 
African or Asiatic Jew as dark.... 
A professing Jew from Syria who was 
not of European nativity or descent 
would be as equally an Asiatic as 
the present applicant, and as such 
not within the terms of the statute.

213 F. at 363.
Prior to Thind. however, the Justice



28
Department's litigation campaign was 
largely unsuccessful. The decision in 
Dow was reversed on appeal,12 and the 
government prevailed in only two of the 
reported cases in which it opposed the 
naturalization of a non-oriental Asian.13 
But Thind largely sustained the 
government's interpretation of section 
2169 and expressly spurned the suggestion 
of the lower courts that all "Caucasians" 
be deemed legally "white." 261 U.S. at 
208-11. There was, this Court reasoned, 
an obvious "racial difference" between 
Hindus and European whites; white 
Americans would react with "astonishment" 
to any suggestion they belonged to the

12 Dow v. United States. 226 F. 145 
(4th Cir. 1910).

13 In re Shahid and In re Singh 
(E.D.pa. 1917), supra.



29
same race as Indians, Polynesians, or 
"the Hamites of north Africa,"14 whose 
complexion ranged "from brown to black." 
261 U.S. at 211, 215. Although the 
original "Aryan" invaders of India may 
have been fair skinned, they had failed 
"to preserve their racial purity" because 
"the rules of caste ... seem not to have 
been entirely successful." 261 U.S. at 
213.

Thind concluded that Congress had 
intended to limit the privilege of 
American citizenship to the white peoples 
of Europe —  "bone of their bone and 
flesh of their flesh." 261 U.S. at 213. 
A decade later this Court explained that 
under Thind "men are not white if the 
strain of colored blood in them is a half

14 The Hamites are Arab inhabitants 
of northern Africa.



30
or a quarter, or, not improbably, even 
less ... Cf. the decisions in the days of 
slavery." Morrison v. California. 291 
U.S. 82, 86 (1934). Morrison noted that, 
because of the "strain of Indian blood in 
many of the inhabitants of Mexico as well 
as in the peoples of Central and South 
America," it was an "unsettled question" 
whether Mexican immigrants were legally 
white and thus eligible for 
naturalization. 291 U.S. at 96 n. 5. 
Few decisions of this Court since Dred 
Scott v. Sanford. 60 U.S. 19 (1857) have 
been as overtly racial in their reasoning 
or conclusion.

Not content with having won in Thind 
a prohibition against future 
naturalization of non-European 
immigrants, the Justice Department after 
1923 embarked on a campaign to



31
denaturalize Indians, Arabs and Armenians 
who had been formally naturalized as much 
as 12 years earlier. Those singled out 
for this vindictive action included the 
chief research engineer of the General 
Electric Corporation and an affluent 
California attorney with a Ph. D.15 The 
Justice Department insisted, usually with 
success, that Thind had held "that 
Asiatics generally ... were excluded as 
racial groups, regardless of the origin 
of their foundation stock or the 
speculations of ethnologists."16 Relying

15 United States v. Gokhale. 26 F.
2d 360 (2d Cir. 1928) ; United States v.
Pandit. 15 F.2d 285 (9th Cir. 1926); see 
also United States v. Cartozian. 6 F.2d 
919 (D.Ore. 1925) ; United States v. Ali. 
7 F.2d 728 (E.D.Mich. 1929), 20 F.2d 998 
(E.D.Mich. 1927) ; United States v. Khan. 
1 F.2d 1006 (W.D.Pa. 1924); Mozumdar v. 
United States. 299 F. 240 (9th Cir. 1924) .

16 Brief for United States, Wadia
v. United States. 101 F.2d 7 (2d Cir.
1939), p. 6.



32
on Thind. several lower court cases held 
that Arabs as a class were not white and 
were therefore ineligible for 
naturalization:

Apart from the dark skin of the 
Arabs, it is well known that they 
are a part of the Mohammedan world 
and that a wide gulf separates their 
culture from that of the 
predominantly Christian peoples of 
Europe. It cannot be expected that 
they would readily intermarry with 
our population and be assimilated 
into our civilization.... Arabia, 
moreover, is not immediately 
contiguous to Europe or even to the 
Mediterranean..17

It was not until after the outbreak of 
World War II that the Immigration and 
Naturalization Service, noting that then 
recent events had made "disastrously 
apparent” "the evil results of race 
discrimination," ruled that Arabs were

17 In re Ahmed Hassan. 48 F. Supp. 
843, 845 (E.D.Mich. 1942); see also
United States v. Ali. 7 F.2d 728, 732
(E.D.Mich. 1925) (emphasizing that skin 
of Arab involved was "unmistakably dark").



33
legally "white," at least if they came 
from areas outside the Asian Precluded 
Zone.18

The position now advanced by 
petitioners is of course precisely the 
opposite of the ruling in Thind. but 
petitioners1 arguments and .reasoning of 
Thind are entirely consistent in 
demonstrating the ease with which racial 
myths and categories can be manipulated 
to legitimize purposeful discrimination. 
This Court has refused in the past to 
permit such manipulation to eviscerate 
the principle of non-discrimiation. 
Texas authorities for over a century 
regarded Mexican-Americans as a distinct

18 Immigration and Naturalization 
Service, Monthly Bulletin, v. 1, No. 4, 
pp. 12-16 (October 1943). The underlying 
statute was finally repealed in 1952. 66 
Stat. 239.



34
and inferior race;19 state forms asked 
individuals to list their races as 
"white,” "negro," or "Mexican,", Mexican- 
Americans were directed by state 
officials to use public facilities for 
blacks rather than those for whites, 
Mexican-American children were required 
to attend separate segregated schools, 
and Mexican-Americans were largely

19 Officials of other states also 
regarded Mexican-Americans as a distinct 
race. See, e.q. . State v. Martinez. 673 
P.2d 441, 443, 105 Idaho 841 (1983);
Riqqin v. Dockweiler. 104 P.2d 367, 367, 
15 Cal.2d 651 (1940); State v. Ouiqq. 155 
Mont. 119, 147, 467 P.2d 692 (1970);
Herrera v. People. 87 Colo. 360, 361, 287 
P.2d 643 (1930); Flores v. . McCoy. 186
Cal. App.. 2d 502, 504, 9 Cal.Rptr. 349
(1960) . See also 53 Cong. Rec. 4846 
(remarks of Rep. Slayden) ("Down in the 
Southwestern states ... we employ the 
word 'Mexican' to define a race rather 
than a nationality.") (1916); U.S. 
Department of Commerce, Bureau of the 
Census, Fifteenth Census of the United 
States, 1930, v.iii, parts 1 and 2 (1932) 
(data on "Mexican race").



35
excluded from participation on juries.20 
When the constitutionality of the latter 
practice was challenged, however, the 
Texas courts held, and the Attorney 
General of that state argued in this 
Court, that deliberate state 
discrimination against Mexican-Americans 
was entirely permissible because, they 
asserted, the state's invidious racial 
theories were simply mistaken; Mexican- 
Americans, counsel for the state argued, 
could be discriminated against because, 
contrary to the belief which pervaded all 
aspects of Texas policy, members of that 
minority were "not a separate race" but 
merely "white people of Spanish

20 Hernandez v. Texas. 347 U.S. 
475, 479-80, 479 n. 9 (1954) ; Brief for
Petitioner, No. 406, October Term, 1953, 
pp. 13, 37-41.



36
descent."21 In Hernandez v. Texas. 347
U.S. 475 (1954), this Court unanimously
rejected that brazen defense, and it
should do so again in the instant case.
II. SECTION 1981 PROHIBITS DISCRIMINA­

TION ON THE BASIS OF ANCESTRY
A. Introduction

The central substantive problem 
presented by this appeal is to determine 
what the thirty-ninth Congress meant by 
discrimination on the basis of "race". 
The original language of section 1 of the 
1866 Civil Rights Act provided that 
"there shall be no discrimination in 
civil rights or immunities ... on account 
of race." 14 Stat. 27. Senator Trumbull, 
in introducing the bill ultimately 
enacted in 1866, described it as a

21 Hernandez v. State. 251 S.W. 2d 
531, 535 (Tex. Crim. App. 1952); Brief in 
Opposition, No. 406, October Term, 1953,
p. 12.



37
measure to protect "every race and 
color". Cong. Globe, 39th Cong., 1st 
Sess. 211 (1866). The legislative
history of the act is replete with 
references to "race" as the prohibited 
basis of discrimination. McDonald v. 
Santa Fe Trail Transportation Co. , 427
U.S. 273, 287-96 (1976).

Petitioners contend that the term 
"race" in the 1866 Civil Rights Act, and 
in the congressional debates of that 
year, should be construed in the manner 
in which that word would be used by a 
late twentieth century ethnologist —  to 
refer to the 4 or 5 major divisions of 
mankind currently recognized by 
scientists, i.e., Caucasian, black, 
oriental, and American Indian.22 The

22This narrow reading of section 
1981 of the 1866 Act is necessarily

(continued...)



38
third circuit rejected that reading of 
the language and history of section 1981, 
reasoning that the framers of the 18 66 
Act did not use the term"' race' ... in a 
crabbed fashion or to signify only those 
races identified by anthropologists as 
distinct." (Pet. App. 22a). We believe 
that the court of appeals was correct; we 
maintain that the term "race" was 
understood by the framers of the 1866 
Civil Rights Act to refer to an 
individual's ancestry, the ethnic group 
to which he or she belongs.

Our contention that section 1981 
forbids discrimination on the basis of 
ancestry is not controlled by the 22

22(...continued)
inconsistent with this Court's decision 
in Takahashi v. Fish and Game Commission. 
334 U.S. 410, 420 (1948), that section 
1981 prohibits discrimination on the 
basis of alienage.



39
conflicting dicta in this Court's past 
decisions regarding whether section 1981 
prohibits discrimination on the basis of 
national origin.23 An individual's 
ancestry, the ethnic group from which he 
and his ancestors are descended, is not 
necessarily the same as that individual's 
national origin, the country from which 
the individual or his forbearers

23 Jones v. Alfred H. Mayer Co. . 
392 U.S. 409, 413 (1968), asserts in
dicta that section 1982 does not forbid 
discrimination on the basis of national 
origin. In Yick Wo v. Hopkins. 1218 U.S. 
356 (1886), on the other hand, the Court 
observed that the Fourteenth Amendment 
prohibited discrimination on the basis of 
race, color, or nationality, and that 
"[i]t is accordingly enacted ... that 
'All persons within the jurisdiction of 
the United States shall have the same 
right to make and enforce contracts 
...,'" quoting section 1981. 118 U.S. at
369 (emphasis added). See also United 
States v. Wong Kim Ark. 169 U.S. 649, 
695-96 (1898). Most recently Delaware
State College v. Ricks. 449 U.S. 250, 256 
n. 6 (1980) , regarded the issue as an
open question.



40
emigrated to the United States. Although 
an individual1s ancestry and national 
origin are in some instances identical, 
as in the case of a Greek from Greece, 
that often is not the case. Some 
distinct groups, such as Arabs, Jews, and 
gypsies, have lived in and emigrated to 
the United States from a large number of 
different countries. Other groups, such 
as the Welsh or the Basques, constituted 
a distinct minority within their native 
lands, and were not in modern times part 
of a distinct Welsh or Basque nation. 
Even where an ethnic group constitutes 
the primary stock of one country, members 
of the same group may also be native to 
other nations; there are indigenous 
Hungarians in Rumania and Irishmen in the 
United Kingdom. Thus an employer which 
had no policy of discriminating on the



41
basis of national origin against 
immigrants from the United Kingdom could 
conceivably discriminate on the basis of 
ancestry against an Irishman from 
Belfast, a Jew from London, or a Welshman 
from Cardiff. In the instant case the 
district court expressly noted that 
respondent's national origin, Iraqi, was 
different than his ancestry, Arabian. 
(Pet. App. 38a).

Nor is our proposed construction of 
section 1981 precluded simply because of 
the existence of Title VII. Petitioners, 
although conceding as they must that 
Title VII did not repeal section 1981 in 
its entirety, urge that section 1981 
should be construed narrowly in light of 
the availability of other remedies under 
Title VII. (Pet. Br. 20-21, 39-40). But 
to interpret section 1981 in a more



42
constricted manner than would have been 
appropriate had Title VII not been 
enacted would be to violate the express 
intent of Congres "that the two 
procedures augment each other and ... not 
[be] mutually exclusive." Johnson v. 
Railway Express Agency. 421 U.S. 454, 459 
(1975). Section 1981 provides a number 
of important remedies and procedures not 
available under Title VII. First, the 
retrospective relief provided to a 
complainant in a section 1981 action is 
not limited to equitable back pay, but 
includes both actual and punitive 
damages. Johnson v. Railway Express 
Agency. 421 U.S. at 460. Second, 
although both Title VII and section 1981 
prohibit racial harassment of an 
employee, Title VII provides no monetary 
remedy for a harassed employee who lost



43
no income as a consequence of that 
discrimination; the only monetary redress 
available for any mental suffering in 
such a case must come under section 1981. 
Third, in a section 1981 action for 
compensatory relief, unlike a Title VII 
for back pay action, the plaintiff would 
be entitled to a jury trial; if the 
plaintiff seeks relief under both section 
1981 and Title VII for the same alleged 
discrimination, the Seventh Amendment 
requires the trial judge adjudicating the 
Title VII claim to defer to the liability 
findings of the jury in the section 1981 
action. Beacon Theatres v. Westover. 359 
U.S. 500 (1959).

If, as we urge, the section 1981 
prohibition against racial discrimination 
encompasses a ban on discrimination on 
the basis of ancestry, dismissal of



44
respondent's claim was necessarily 
improper. The district court expressly 
and correctly acknowledged that 
respondent had claimed that he had been 
discriminated against because of his Arab 
ancestry. (Pet. App. 38a). Similarly, 
the anti-Semitic incident in Shaare 
Tefila was manifestly based on the Jewish 
ancestry of the individual petitioners 
and other members of the petitioners1 
synagogue, rather than on their religious 
views. As one amicus has observed, most 
anti-Semitism during the last century has 
been based on the ancestry and purported 
"racial” character of the Jewish people24

24 See also Mavers v. Ridlev. 465 
F.2d 630, 631 n.l (D.C. Cir. 1972) (en 
banc) (quoting restrictive covenant 
forbidding sale or lease of property "to 
any person of the Semitic race, blood or 
origin, which racial description shall be 
deemed to include Armenians, Jews, 
Hebrews, Persians and Syrians....)



45
rather than on theological differences 
with the religious tenets of Judaism.25

We ground our proposed
interpretation of section 1981 on four 
distinct arguments. First, we urge that 
because the Fourteenth Amendment 
prohibits discrimination on the basis of 
ancestry, the 1866 Civil Rights Act 
should be read in the same manner, since 
the Congress which adopted both measures 
understood them to contain similar 
prohibitions. (Pp. 46-49, infra).
Second, we contend that during the 
nineteenth century "race" had a meaning 
similar to "ancestry" or "ethnic group" 
in modern English, and that Arabs and 
Jews, for example, were commonly referred 
to as races. (Pp. 50-73, infra). Third,

25 Brief Amicus Curiae of the Anti- 
Defamation League, etc., et al., p. 15.



46
we argue that the framers of section 1981
used the term "race" in this manner, and
expressly intended that statute to
prohibit discrimination by the Know
Nothings against particular white ethnic 
groups, such as "the German race.” (Pp. 
73-88, infra). Finally, we suggest that 
the interpretation of section 1981 
proposed by petitioners would be 
unworkable in practice. (Pp. 88-103, 
infra).
B. The 1866 Civil Rights Act and the

Fourteenth Amendment
The non-discrimination principle 

embodied in the equal protection clause 
of the Fourteenth Amendment has never 
been tied to any technical ethnological 
meaning. This Court has repeatedly held 
that the equal protection clause forbids 
discrimination on the basis of



47
ancestry.26 Hirabavashi v. United
States. 320 U.S. 81 (1943), which first
ruled that the Fourteenth Amendment
forbids discrimination on account of
ancestry, was expressly premised on the
view that discrimination on the basis of
ancestry constitutes racial
discrimination within the meaning of the
Fourteenth Amendment:

Distinctions between citizens solely 
because of their ancestry are by 
their very nature odious to a free 
people whose institutions are 
founded upon the doctrine of 
equality. For that reason, legisla­
tive classification or discrimina­
tion based on race alone has often 
been held to be a denial of equal 
protection. 320 U.S. at 100.
(Emphasis added).

26 Fullilove v. Klutznick. 448 U.S. 
448, 491 (1980) (discrimination on the 
basis of "ethnic criteria"); Hernandez v. 
Texas. 347 U.S. 475, 479 (1954) 
(discrimination on the basis of 
"ancestry"); Ovama v. California. 332 
U.S. 633, 646 (1948) (discrimination on 
the basis of "ancestry"); Hirabavashi v. 
United States. 320 U.S. 81, 100 (1943).



48

If, as Hirabavashi reasoned, the 
"racial" discrimination prohibited by the 
Fourteenth Amendment encompasses discrim­
ination on the basis of ancestry, it 
would be surprising indeed if the 1866 
Civil Rights Act's similar prohibition 
against racial discrimination, enacted 
less than three months before Congress 
approved the Fourteenth Amendment, had 
any different meaning. The fact that the 
Fourteenth Amendment itself prohibits 
discrimination on the basis of ancestry 
is weighty evidence that the 1866 Civil 
Rights Act does so as well:

In considering .. . the kind of 
governmental action which the first 
section of the Civil Rights Act of 
1866 was intended to prohibit, 
reference must be made to the scope 
and purpose of the Fourteenth 
Amendment; for that statute and the 
Amendment were closely related both 
in inception and in the objectives 
which Congress sought to achieve... 
It is clear that in many significant



49
respects the statute and the 
Amendment were expressions of the 
same general congressional policy.

Hurd v . Hodge. 334 U.S. 24, 32 (1948).
The thirty-ninth Congress adopted the
Fourteenth Amendment in part to assure
that the Civil Rights Act's prohibition
against government discrimination could
not be repealed by a simple majority of a
later Congress. Section one of the
Amendment, Representative Thayer noted,
was "but incorporating in the
Constitution of the United States the
principle of the civil rights bill which
has lately become law."27

27 Cong Globe, 39th Cong., 
Sess., 2465 (1866).

1st



50
B. The Etymology of the Word "Race11

When Congress frames a statute with 
words which enjoy a meaning familiar and 
intelligible to ordinary members of the 
public, the statute must be interpreted 
in light of that common understanding, 
not on the basis of some possibly 
different definition used by scientists. 
Mail lard v. Lawrence. 54 U.S. (16 How.) 
251, 261 (1853). The interpretation of
statutes enacted a century or more ago 
requires particular caution, for the 
words chosen by Congress, like any other 
part of the English language, may have 
had a significantly different common 
meaning 50 or 100 years ago than they do 
today. The word "race" is a term whose 
meaning has indeed changed substantially 
over the course of the last 150 years. 
We set out in Appendix E the definitions



51
of "race" contained in 50 dictionaries 
published between 1750 and 1985.28 As we 
explain at length below, this Appendix 
demonstrates that the term race has had 
three quite distinct meanings over that 
period of time —  in 1800 "race" meant 
"family", between roughly 1850 and 1950 
"race" was generally understood to denote 
an individual's ancestry or ethnic 
background, and only in the last several 
decades has "race" been widely understood 
among laymen to refer to one of the 4 or 
5 basic divisions of mankind. Prior 
to 1850 the primary meaning of "race" was 
family. Samuel Johnson's 1768 Dictionary 
of the English Language defines race as

28 A chronological list of the 
dictionaries cited is set forth in 
Appendix D. The brief citations which 
follow refer to the author or title and 
date of publication; the full citation 
can be found in that appendix.



52
"[a] family ascending ... [a] family 
descending ... a collective family." The 
first edition of Noah Webster's American 
Dictionary, published in 1830, defines 
race as " [t]he lineage of a family, or 
continued series of descendants from a 
parent who is called the stock." In 
Alfred Lord Tennyson's 1832 poem 
"Locksley Hall" the protagonist uses the 
term in this sense, declaring "I shall 
take some savage woman, and she shall 
rear my dusky race".29 Consistent with 
this meaning, the most common definition 
of "kinsman" until early in the twentieth 
century was "man of the same race"; 
"kin," "kinfolk" and "kindred" were

29 A. Tennyson, Poems. 282 (1853). 
The reference appears to be to an Asian 
Indian woman; an earlier line refers to 
"Mahratta," (Maratha), a people and 
region of south central India. The 
protagonist of the poems is an 
Englishman.



53
similarly defined as referring to persons 
of "the same race". See Appendix F. 
"Race" was frequently given as a synonym 
for "family," "lineage," and "progeny." 
See Appendices G, H, I. "House", which 
at times still denotes a family ("The 
House of Windsor"), was also defined as a 
"race". See Appendix J.

The use of the term race to refer to 
an ethnic group dates from at least 
160030, but it appears to have been 
relatively uncommon until the middle of 
the nineteenth century. The earliest 
instance in which any English language 
dictionary clearly utilized "race" in 
this sense appears to be the 1830 edition 
of Websters, which defines gypsies as "a

30The Oxford English Dictionary cites 
references to "the British race" (c. 
1600), the "Pigmean race" (1667), and 
"Troy's whole race" (1713). V. 8, p. 87 
(1933) .



54
race of vagabonds which infest Europe, 
Africa and Asia." Four other
dictionaries published prior to 1850 also 
refer to gypsies as a "race", a usage 
which may well reflect the fact that the 
small bands of gypsies more closely 
resembled families than the large ethnic 
groups that would later be characterized 
as races. See Appendix K. The other 

- ethnic group to be defined as a race 
prior to 1850 was the Semites.31 
American dictionaries published in 1846 
and 1855 expanded the definition of 
"race" to include "ancestry" as well as 
"family,"32 and the definition of race in 
the 1876 edition of Websters was altered 
to include a "tribe, people, or nation, 
believed or presumed to belong to the

31Worcester (1846), p. 656.
32Id., p. 585; Smalley (1855) p. 381.



55
same stock.”33 After 1840 "race" also 
begins to appear as a synonym for words 
which clearly refer to groups larger than 
blood relatives, such as stock34, 
tribe35, and even nation36.

The use of the term race to refer to 
an individual1s ethnic background is 
clearly reflected in the encyclopedias of 
the era. The 1854 edition of the 
Encyclopedia Americana. for example, 
explained in a description of northern 
Africa:

33Webster (1876), p. 589.
34Reid (1846), p. 391; Worcester

(1846), p. 698; Bolles (1847), p. 715; 
Smallev (1855), p. 506.

35Reid (1846), p. 420; Worcester
(1846), p. 754; Boaq (1847), p. 1357; 
Craig (1849), p. 920; Smallev (1855), p. 
571.

36 Clark (1855), p. 255 (nation 
defined as "a great body of people born
of the same race, as the English in
England and America”).



56

The Arab natives are, for the most 
part, a wandering race, dwelling in 
tents . . . Their business is war; 
their income is plunder. (V. 1, p.
563) (Emphasis added).

Amongst the Berbers, the encyclopedia
explained, "[a]11 the branches of this
race are distinguished by beards." (v.l,
p. 563) (emphasis added). The Bedouins
were "a numerous Mohammedan race, which
dwells in the deserts of Arabia, Egypt
and Northern Africa" (v. 2, p. 79)
(emphasis added), and the Copts of Egypt
were "evidently a distinct race" (v.3, p.
526) (emphasis added). The description
of "Hebrews", although less perjorative
than the discussion of Arabs, was equally
racial;

This singular people ... presents 
the wonderful spectacle of a race 
preserving its peculiarities of 
worship, doctrine, language and



57
feelings in a dispersion of 1800 
years over the whole globe.37

The Encyclopedia____ Americana also
characterized as distinct races Finns,
gypsies, "Hindoos", Basques, Sclavonians,
Tatars, Georgians, and Samoiedes.38

The New American Cyclopaedia.
published in the years 1858-63, refers to
Arabs as a race in nine different
entries,39 and characterized the Arab
peoples as comprised in turn of a number
of subsidiary races:

[T]he various races and tribes known 
collectively as Arabs comprise

37V .6, p. 209 (emphasis added). 
Another passage characterized Jews as a 
race. V.ll, p. 118.

38 V. 5, p. 123; v.6, pp. 123, 333-
4; v.ll, p. 118. "Samoiedes" appears to 
be a reference to the Samoyeds, a people 
inhabiting northeastern European Europe 
and northwestern Siberia.

39V . 1, p. 739; v.2, p. 610; v.3, p. 
158; v. 5, p. 697; v.7, p. 34; v.9, p.
742; v. 13, p. 159; v. 15, pp. 603, 653.



58
nearly seven-eights of the 
population [of Arabia]. Of the 
Arabs... the ... Bedouins are a 
wandering race, living in tents and 
moving in troops from place to 
place.40
[T]he Berbers are an interesting 
race ... [r]ude, warlike, and 
nomadic.41
[T]he Copts are beyond question the 
best representatives of the ancient 
Egyptian race42.
Druses ... [are] a race and a 
religious sect of Syria, chiefly in 
the southern ranges of Lebanon43.

The Jews were described as "a people of
the Semitic race".44 The New American
Cyclopaedia refers in all to more than 20

40 v.i, P- 739 (emphasis added).
41 V. 3 , P- 158 (emphasis added).
42 V. 5, P- 697 (emphasis added).
43 V. 6, P- 630 (emphasis added).
44 V. 9, p. :27; see also v.2r

610 (Jews one of the six races inhabiting
the Barbary states), v.ll, p. 742 (Jews
one of the six races inhabiting Morocco),
v.15, p. 603 (Jews one of the seven races
inhabiting Tripoli).



59
different ethnic groups as constituting 
races, including Afghans, Celts, Danes, 
Swedes, Norwegians, Germans, Greeks, 
Italians, Wallachians, Magyars, Persians, 
Kurds, Spaniards, Portuguese, Russians, 
Turks, and Tatars.45

The 1878 American edition of the 
Encyclopedia Britannica also used "race" 
to refer to what we would now describe as 
ethnic groups:

The origin of the Arab race ... can 
only be a matter of conjecture ... 
[T]he first certain fact is the ... 
division of the Arab race into two 
branches, the "Arab", or pure; and 
the "Mostareb", or adscititious.46
BARBARY ... The name is derived from 
the Berbers, one of the most

45 V. 1, p. 166; V .  4, p. 638; V .  6 , 
p. 382; V .  7, pp. 335-37, 655; v.9, p.
335-6; v.13, pp. 159-60, 506; v.14, pp.
225-26, 804; V.15, pp. 216, 264, 603, 653.

46V.2, p. 245 (emphasis added); see 
also v.1, p. 564.



60
remarkable races in the region.47
The Druses are a mysterious people 
. .. The mere fact that they possess 
a knowledge of the Celestial Empire 
in such contrast to the geographical 
ignorance of the other Syrian races 
is in itself remarkable ... the rise 
and progress of the religion which 
gives unity to the race can be 
stated with considerable 
precision.48

Jews were expressly referred to as a 
race, as were Afghans, Turks, Germans, 
Poles, Croatians, Servians, Danes, Finns, 
Germans, Hungarian, Greeks, Albanians, 
and the Persians.49

The definition of "race" urged by 
petitioners, denoting one of a small 
number of branches of mankind, does not 
appear in an English language dictionary

47V.4, p. 363 (emphasis added); see 
also v.1, p. 564.

48v .7, p. 483
49v,. 1, pp. 23 6, 564; V . 3 , P- 118;

V.7, P- 84; v. 9, p. 216; v.10, P- 473 ;v. 11, P- 83; V.12, p. 365; v.18, p. 627.



61
until the publication at the turn of the 
century50 51 of the Century Dictionary and 
Cyclopedia. The eight volume Century 
Dictionary expressly distinguished three 
separate meanings of the word "race":
(1) "[a] geneological line .
family; kindred;" (2) "[a] tribal or
national stock ... as, the Celtic race; 
the Finnic race ...; the English, French 
and Spani[sh] ... races;" and (3) "a 
great division of mankind ... as, the 
Caucasian race.1,51 The editors of the 
Century Dictionary made clear by their 
own use of words, however, that they 
regarded the second meaning as the most

50 Counsel for respondents were able 
to locate a 1911 edition of this multi­
volume publication. There appears to 
have been an 1891 edition, but we have 
not been able to locate a copy ascertain 
its contents.

51 V. 8, 
original)

p. 4926 (emphasis in



62
widely used and accepted. Thus in other 
definitions the Century Dictionary refers
to "[t]he English race," "the Arabic
race," "the ancient Egyptian race or
races," "the Irish race," "the Italian
race," "the French race," "the Spanish
race," "the German race," "the Hungarian
race," "the Greek race," "the Finnic
race," "the Slavic race," "the native
race of India," "the races speaking 
Iranian languages," and "a race 
inhabiting Kafiristan."52 A Moor was 
described as "[o]ne of a dark race 
dwelling in Barbary ... a mixed race, 
chiefly of Arab and Mauritanian origin", 
and "Semitic" was defined as "pertaining 
to the Hebrew race or any of those

52 V. 1, p. 214; v. 3, pp. 1856, 
1933; V. 4, pp. 2226, 2373, 2499, 2614, 
2823; V. 5, pp. 2920, 3058, 3180, 3202, 
3261; v. 8, pp. 5279, 5794.



63
kindred to it, as the Arabians...."53

The definition of race in the 1876 
edition of Webster1s. quoted earlier, 
remained essentially unchanged for 40 
years. In 1916 the editors for the first 
time noted that the term had acquired a 
new scientific meaning in addition to the 
meaning understood by laymen. The 
additional entry read "6. Ethnol r ocrvl .
A division- of mankind possessing constant 
traits, transmissible by descent, 
sufficient to characterize it as a 
distinct human type." But the editors 
themselves continued to use "race" in the 
popular sense of ethnic group. Thus an 
Iraq was defined as "[0]ne of the natives 
of Iraq, chiefly of the Arabic race", and 
a Hamite was defined as "[a] member of

53 V. 6, p. 3852; V. 8, p. 5487.



64
the chief race of North Africa."54 Among 
the definitions of "race" in the other 
dictionaries published between the turn 
of the century and 1940, four do not 
include division of mankind as an 
alternative meaning, two characterize 
that meaning as a use peculiar to 
ethnologists, and only one characterizes 
that meaning as found common parlance.55 
The editors of all of these dictionaries, 
moreover, continued themselves to use the 
word race to refer to ethnic groups.56

54 Webster (1916), pp. 450, 532; see 
also id. at 224 (Copt) , 472 (Hindu) , 510 
(Indian), 740 (Persian).

55 Price (c. 1899) , 608 (no such
meaning); Chambers (1908) 762(no such
meaning); Skeat (1910) 494 (no such
meaning); Winston (1919) , 502 (an
alternative meaning); Weekley (1921), 
1190 (no such meaning); Universal (1932), 
955 (ethnological term).

56 See, e.q.. Winston (1919) pp. 
21, 28, 56, 135, 273, 342, 346, 502.



65
World War II marks the beginning of 

a decided shift in the common usage of 
the term race. Virtually all English 
dictionaries published after 1940 offer 
"division of mankind" as a possible 
meaning of "race", and in most instances 
this is a popular rather a scientific 
definition, although the earlier 
definition of race as "stock", 
"ancestry", or "ethnic group" remains.57 
Among dictionaries published during the
1940's, references to ethnic groups as
"races" continue, but those groups are
referred to with equal frequency as

57 Thorndike (1941), p. 751 (common 
meaning); Odham (1946), p. 862 (common 
meaning); Funk and Waanalls (1947), p. 
964 (common meaning); Thorndike-Barnhart 
(1955), p. 639 (common meaning); Random 
House (1966) , p. 1184 (ethnology) ; 
Webster1s (1985), p. 969 (common 
meaning); but see American College 
(1947), p. 997 (no such meaning); Origins 
(1966), p. 546 (no such meaning.



66
"peoples". The Thorndike Century Senior 
Dictionary (1941), for example, 
characterizes Semites, Hindus, Moors, 
Hamites and Berbers as distinct races, 
but describes the Jews as a "people", and 
gypsies as a "group".58 Among 
dictionaries printed after 1960, ethnic 
groups are virtually never referred to by 
the editors themselves as races,59 
although the dictionaries recognize, 
within their definitions of "race," that 
such usage still occurs among the
public.60 This change in usage is

£COIf) 44, 84, 417, 421, 441, 505,
603, 830.

59 But see Webster's fl963). p.289 (Copt defined as "an Egyptian of the
native race"); Oxford American (1980), p. 
617 (Semite defined as "a member of the 
group of races that includes the Jews and 
Arabs").

60 Funk and Waanalls (1963) p. 1038 
(German race); Webster's (1985), p. 969

(continued...)



67
signaled most clearly in the differences 
in the definitions found in Webster's 
Second New International Dictionary, 
originally published in 1934 and 
reprinted as late as 1956, and Webster's 
Third New International Dictionary, first 
published in 1961. Webster's Second 
characterizes Arabs, Jews, Anglo-Saxons, 
Moors, Semites, Hamites, Hindus, and 
Indians each as distinct races; in 
Webster's Third the word "people” has 
been substituted for "race" in every one 
of those definitions.60 61 The editors of

60(...continued)
(English race); Webster's (1971), p. 1870 
(Anglo Saxon race, Jewish race).

61 Webster's (1956), pp. 103, 136,
1334, 1591, 2276, 1130, 1180, 1309;
Webster's (1971), pp. 84, 108, 1047,
1467, 2065, 1024, 1070, 1193. Webster's
Second contains detailed lists of various 
"races" inhabiting Persia and India, pp. 
1263, 1827; no comparable list is
included in the subsequent edition. The

(continued...)



68
Webster*s Third note that while the 
"anthropological and ethnological" 
definition of race referred to "distinct 
physical type[s]", such as the
"Caucasian", "Malay", and Ethiopian" 
races, there was also a "popular use" 
which was applied to any group "because 
of a common or presumed common past", 
such as "the Anglo-Saxon race . . . the 
Celtic race ... [and] the Hebrew race." 
(P. 1870) (emphasis omitted).

The long standing usage of the word 
"race" to encompass ancestry is reflected 
in the decisions of this Court. The 
military commander who in 1942 directed 
the eviction of the Japanese-Americans 
from the Pacific coast characterized 
individuals of Japanese descent as 61

61(...continued)
only ethnic group referred to as a race 
in Webster*s Third is the Copts. P. 588.



69
belonging to "an enemy race" whose 
"racial strains are undiluted." 
Korematsu v. United States. 323 U.S. 214, 
236 (1944) (Murphy, J., dissenting). The 
prosecutors office in Dallas County, 
Texas, utilized a jury-selection manual 
that instructed government attorneys, "Do 
not take Jews, Negroes, Dagos, Mexicans 
or a member of any minority race on a 
jury, no matter how rich or well 
educated." Batson v. Kentucky. 90
L.Ed.2d 69, 92 n. 3 (1986) (Marshall, J., 
concurring). In Near v. Minnesota. 283 
U.S. 697 (1931), Chief Justice Hughes 
described the newspaper whose publication 
the government sought to restrain as 
"largely devoted to malicious, scandalous 
and defamatory articles' concerning . . . 
the Jewish race." 283 U.S. at 703. See
also Hirabavashi v. United States. 320



70
U.S. 81, 111 (1943) (HJewish race"); Fona 
Yue Ting v. United States. 149 U.S. 698, 
757 (1893) (Field, J., dissenting) 
("Jew[ish] ... race.") The decisions of 
this Court are replete with references to 
"the Chinese race." 62

An American coming of age after 
I96063 doubtless uses and understands the 
word "race" differently than did his or 
her parents, or the framers of the Civil 
Rights Act of 1866. This is certainly a

62E.q. United States v. Wong Kim 
Ark. 169 U.S. 649, 694, 696, 698 (1897) 
Fong Yue Ting v. United States. 149 U.S. 
698, 717 (1893); Ouock Ting v. United 
States. 140 U.S. 417, 417 (1891).

63 The framers of the civil rights 
acts of the 1960's were from a generation 
familiar with the earlier use of the word 
"race," and certainly intended the 
prohibition against "racial" 
discrimination to be at least as broad as 
the prohibition contained in the 
Fourteenth Amendment. Regents of 
University of California v. Bakke. 438 
U.S. 265 (1978); see n. 26, supra.



71
salutary development. For over a century 
the popular use of the word race, whether 
to refer to Arabs or Jews, Indians or 
Italians, has been a practice freighted 
with enormous potential for triggering or 
rationalizing ethnic hatreds.64 Seventy- 
five years ago a prescient few objected 
in vain to the continued designation of 
such minority groups as separate 
races. 65 But change was to come only 
after the atrocities of World War II, the 
uprooting of the European colonial

64"The theory of racial types was a 
fateful error which contributed 
significantly to Europe's imperial 
arrogance . . . and to the politics that 
entailed the murder of six million Jews'
M. Banton & J. Harwood, The Race Concept. 
32 (1975).

65Sen. Doc. No. 747, 61st Cong., 3d 
Sess., pp. 17-20 (1911) (testimony of 
Union of American Hebrew Congregations). 
Other early objections are described in 
A. Montague, The Concept of Race, pp. 15 
et. sea. (1964).



72
empires, and the civil rights movement 
revealed the danger inherent in such 
racial designations. 66 Today most 
Americans avoid characterizing ethnic 
groups as "races" because such language 
necessarily carries an offensive 
implication that the speaker regards the 
group referred to as in some manner 
inferior.67 The gradual substitution of 
words such as "people", "ancestry" and 
"ethnic group" in contexts where "race" 
was once used is an event of sociological 
as well as etymological significance.

But the language used in 1866 by the 
men who framed, debated and adopted the 
Civil Rights Act of that year must be

66 Ashley Montague’s Man1s Most 
Dangerous Myth: The Fallacy of Race 
(1942) played a critical role in bringing 
this popular use of the term into 
disrepute.

67 But see infra p. 34 n.19.



73
understood in the light of the meaning 
commonly given those words 121 years ago. 
At that time, to anyone except perhaps to 
a minority of ethnologists, the word 
"race" referred to any distinct ethnic 
group, and racial discrimination meant 
discrimination on account of such 
ancestry.
D. The Legislative History of Section

1981
The term "race" was used throughout 

the debates of 1866 to refer to the 
ancestry of an individual. In defending 
the proposal in section 1 of the Civil 
Rights Act to extend citizenship to all 
native born Americans, Senator Morrill 
admonished:

[A] 11 the varieties of the
races of the nations of the
earth have gathered here. In
the early settlements of the
country, the Irish, the French,
the Swede , the Turk, the
Italian, the Moor, and so might



74
I enumerate all the races and 
all the variety of races, came 
here. 68

Senator Davis, opposing that citizenship 
clause, argued that the nation had been 
founded by and for Europeans, including 
"the Scandinavian races of the North", 
rather than "the barbarian races of 
Asia."69 Senator Hendricks asserted that 
American citizenship belonged and should 
be limited to "the inhabitants of the 
United States who were descended from the
great races of Europe."70 In other
debates in 1866 regarding the Civil
Rights Act and related legislation,
speakers referred to "the Chinese

68Cong. Globe, 39th Cong., 1st Sess. 
570 (1866).

69Id. at 499 (emphasis added)
70Id. at 2939 (emphasis added).

I



75
race",71 "the Latin races," 72 "the 
Spanish race",73 and the "Anglo-Saxon 
race."74 President Johnson, in his 
message vetoing the 1866 Civil Rights 
Act, characterized "the people called 
Gypsies" as a race,75 as did several 
members of Congress.76

71Id. at 498 (remarks of Sen. 
Cowan) , 523 (remarks of Sen. Davis) ; see 
also id. at 497 (remarks of Senator Van 
Winkle) (the "inferior races that are now 
settling on our pacific coast") (emphasis 
added), 1269 (remarks of Rep. Kerr.) 
("race" of "coolies")

72Id. at 238 (remarks of Rep. Kasson)
7 3 Id. at 251 (remarks of Sen.

Morrill).
74Id. at 180 (remarks of Rep.

Scofield), 238 (remarks of Rep. Kasson),
291 (remarks of Sen. Nesmith) , 209
(remarks of Sen. Stewart), 542 (remarks
of Rep. Dawson).

75Id. at 1857.
76Id. at 1759 (remarks of Sen.

Trumbull) (gypsies are within the
protections of a presidential order

(continued...)



76
Members of the thirty-ninth Congress 

repeatedly equated "white" with "Anglo- 
Saxon". Senator Stewart admonished, "I 
believe the Anglo-Saxon race can govern 
this country . . . .  I believe the white 
man can govern it without the aid of the 
negro." 77 Representative Dawson argued

We have, then, to insist 
upon it that this government 
was made for the white race . . 
. . We must make our own. laws 
and shape our own destiny. 
Negro suffrage will, in its 
tendency, force down the Anglo- 
Saxon to the negro level, and 
result inevitably in 
amalgamation and deterioration 
of our race 78.

7 6(...continued)
forbidding discrimination based on "color 
or caste"), 2891 (remarks of Sen. Cowan), 
3215 (remarks of Rep. Niblack)(Civil 
Rights Act protects gypsies)

77Id. at 1120; see also id at 298 
(remarks of Sen. Stewart) ("this is a 
white man's government . . . .  we are a 
race descended from the original Anglo- 
Saxon stock")

78Id at 542.



77
Senator Nesmith also equated "white” with 
"Anglo-Saxon".79

The 1866 debates do contain a 
reference to the "Caucasian" race, but 
the passage makes clear that the speaker 
understood the term to refer only to 
individuals of European ancestry. 
Speaking of past practices in granting 
American citizenship, Senator Davis 
asserted:

The whole material out of which 
citizens were made . . . was 
from the European 
nationalities, from the 
Caucasian race, if I may use 
the term . . . .  I controvert 
that a single citizen was ever 
made by one of the States out 
of the Chinese race, out of the 
Hindoos, or out of any other 
race of people but the

79Id. 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. . . are not to be
overridden").



78
Caucasian race of Europe. 80 

Davis' insistence that Hindus were not 
"Caucasian" makes clear that he was using 
that word in a manner quite different 
from do modern ethnologists. Other 
speakers maintained that not all the 
natives of Europe itself were "white", 
arguing, for example, that Basques are 
not "what we call white men."81

Representative Dawson, using the
term "race" in a similar manner, insisted
that Jews were a race:

It is the homogeneous races 
which have controlled the 
world. The Jew, though without 
a country and every where the 
object of prejudice, yet 
maintains his physical and 
mental excellence even to this 
present day; and it is because 
he intermarries chiefly with 
his own race.

80Cong. Globe, 39th Cong., 1st 
Sess., 523 (1866).

81Id. at 306 (Rep. Kelley).



79
Representative Kerr expressly regarded 
Mexicans just as a distinct race, like 
blacks and orientals.82

Those who supported the adoption of 
the 1866 Act expressly intended that it 
would protect from discrimination not 
only newly freed slaves, but also 
immigrant groups whose ancestry was or 
might become the object of popular 
hostility. In the two decades prior to 
the Civil War, such hostility had been a 
major factor in American political life, 
destroying the old Whig party and at 
times eclipsing slavery as the dominant 
national issue. That bigotry, the
primary policy of a movement known as 
Nativism or know Nothingism, was largely 
directed against two unpopular groups—  
the Irish immigrants in the northeast,

82Id. at 1268 (emphasis added).



80
and the German immigrants in the midwest. 
Nativist groups and individuals 
circulated a variety of proposals for 
restricting the rights of these groups, 
and the flourishing bigotry at times led 
to bloodshed. One Know Nothing tract 
described the Germans and Irish as 
"degenerated races" imbued with "bitter 
hostility ... for the Anglo-Norman race." 
These new immigrants, the Know Nothings 
argued, lacked the intelligence, honesty 
and democratic principles of native 
Americans: "It is contrary to the laws 
of nature for any two people so unlike 
physically, mentally, morally, socially, 
and politically to live together under 
the same jurisdiction.... It is a 
conflict of races."83

83 Samuel C. Busey, Immigration: 
Its Evils and Consequences, pp. 23, 39, 
42 (1856).



81
In 1854 and 1855 the nativist Know 

Nothing party captured control of the 
state legislatures in Massachusetts, 
Maryland, California Connecticut and 
Indiana, and in 1856 the Know Nothing 
candidate received 25% of the popular 
vote in the presidential election.84 
German and Irish immigrants were openly 
denounced on the halls of Congress.85 In 
response, the Republican platform of 1860 
expressly denounced the Know Nothing 
movement, and declared the Republicans 
"in favor of giving a full and efficient

84See generally Ray Allen 
Billington, The Protestant Crusade 1800- 
1860; A Study of the Origins of American 
Nativism (1963); M. Evangeline Thomas, 
Nativism in the Old Northwest. 1850-60 
(1936); Humphrey J. Desmond, The Know- 
Nothing Party (1904).

85 See. e.g. Cong. Globe, 34th 
Cong., 1st Sess., 1409-14 (1856) (remarks 
of Sen. Adams).



82
protection to the rights of all classes 
of citizens, whether native or 
naturalized. . . . "86 German voters 
played a pivotal role in the election of 
Lincoln in 1860, and the successful 
Republican effort to win their ballots 
was coordinated by Carl Schurz,87 who six 
years later played a key role in winning 
congressional support for the protections 
embodied in both the Fourteenth Amendment 
and the 1866 Civil Rights Act.88

86Franklin L. Burdette, The 
Republican Party: A Short History. 149
(2d ed. 1972)

87Thomas, supra n. 84, 239.
88Joseph B. James, The Framing of 

the Fourteenth Amendment. 11, 17-19, 51
(1908); Memphis v. Greene. 451 U.S. 100, 
131 n. 4, 132 (1981) (White, J. ,
concurring). Schurz's report on the 
condition of blacks in the south was 
repeatedly referred to during the 1866 
debates. See, e.g.. Cong. Globe, 39th 
Cong., 1st Sess., App. 58 (remarks of 
Rep. Julian) , 589 (remarks of Rep.
Donnelly), 2083 (remarks of Rep. Perham).



83
This history of hostility towards

German and Irish immigrants was one of
the express concerns of the framers of
the 1866 Civil Rights Act. Senator
Shellabarger explained that the Act was
intended to prohibit the states from
engaging in the type of discrimination
favored by the infamous Know Nothings.
Section 1 of the Act, he urged, would if
adopted defeat any attempt

to deprive races and the 
members thereof as such of the 
rights enumerated in this act.

Who will say that Ohio can 
pass a law enacting that no man 
of the German race . . . shall 
ever own any property in Ohio, 
or shall ever make a contract 
in Ohio, or even inherit 
property in Ohio, or ever come 
into Ohio to live, or even to 
work? If Ohio may pass such a 
law, and exclude a German 
citizen, . . . because he is of 
the German nationality or race, 
then may every other State do



84
SO. 89

Representative Lawrence was equally 
unequivocal in his explanation that the 
Civil Rights Act was necessary to 
prohibit enactment of the discriminatory 
schemes of the Know Nothings:

If the people of a state 
should become hostile to a 
large class of naturalized 
citizens and should enact laws 
to prohibit them and no other 
citizens from making contracts, 
from suing, from giving 
evidence, from inheriting, 
buying, holding, or selling 
property, or even from coming 
into the State, that would be .
. . a denial of justice.

Yet twelve years have not 
passed since these and other 
hostile measures against 
naturalized citizens were 
gravely discussed in several of 
the States... 89 90

In urging adoption of the Fourteenth

89Cong. Globe, 39th Cong., 1st
Sess., 1294 (emphasis added).

90Id. at 1833.



85
Amendment, Representative Ashley 
analogized southern treatment of the 
freed men to the plight of unpopular 
immigrants "in the days of Know 
Nothingism"91.

The virtually universal use of the 
term "race" in 1866 to refer to distinct 
ethnic groups is sufficient by itself to 
compel the conclusion that the "racial" 
discrimination forbidden by section 1981 
is discrimination on the basis of ances­
try. The Civil Rights Act of that year 
was framed by mid-nineteenth century lay 
men, not by late twentieth century eth­
nologists. The opponents of the Act ex­
pressly denounced as inferior "races" a 
variety of ethnic groups whom a modern 
anthropologists might categorize as 
Caucasian. Those who voted for the Civil

91 Id. at 2882.



86
Rights Act did so to protect , not only
blacks, orientals, and Indians, but any
ethnic group which , like blacks in the
past, might in subsequent years be
characterized as "inferior in mental
caliber and lacking poise of
character."92

The members of the Thirty-ninth 
Congress knew from the schemes of the 
infamous Know Nothings that the bigotry 
and abuses then being directed at blacks 
could with equal vehemence be inflicted 
on any ethnic group which did not happen 
to be Anglo-Saxon. Congress clearly 
intended to protect not only the 
particular ethnic groups that had been 
attacked by the Know Nothings, but also 
future immigrants who might be the

92Id. at 177 (remarks of Rep. 
Boyer).



87
targets of similar hostility. As
Representative Lawrence explained, in a 
speech given on the very day the House 
overrode President Johnson's veto and 
made the civil rights bill law:

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 
becomes a law, protect every 
citizen, 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.93

In the decades since the Civil War the 
intolerance once directed at the Germans 
and the Irish has been focused on 
immigrants of other ancestries, Italian, 
Greek, Japanese, Chinese, Mexican- 
American, Puerto Rican, Jewish and Arab.

93Id. at 1833



88
In some instances events abroad have 
stirred up animosity towards groups that 
had long thought themselves fully 
accepted by their fellow Americans. The 
1866 Civil Rights Act, remains, as it was 
intended to be, an essential charter of 
justice and equality for all Americans, 
the descendants of those who fled to our 
shores seeking to escape the hatreds and 
strife of the Old World, as well as the 
descendants of those who came here in 
chains, prisoners of the slave system 
that ended only with the victory of the 
Union army.
E. The Difficulties Inherent in 
Respondents1 Proposed Construction of 
Section 1981

(1) The Definition of "Caucasian11
Petitioners urge that section 1981 

permits discrimination on the basis of 
ancestry so long as both the victimized



89
group and the preferred group are 
"Caucasian". The federal courts, in 
order to administer such a distinction, 
would necessarily be required to 
establish and apply some official 
definition of "Caucasian", so that the 
racial identity of the various affected 
groups could be determined. The term 
Caucasian, however, unlike,, for example, 
the word carbon, does not have among 
either the public or ethnologists a clear 
and unvarying meaning.

There was certainly no consensus in 
the mid-nineteenth century as to the 
definition of "Caucasian". One prominent 
authority, writing in 1854, commented, 
"What is meant by the word ' Caucasian?1 
Almost every ethnologist would give a



90
different reply.”94 The state of
ethnology when the 1866 Civil Rights Act 
was adopted was depicted in detail in the 
New American Cyclopaedia of 1858. The 
Cyclopaedia set forth a summary of "the 
most important and generally accepted" 
racial classification systems, describing 
24 different systems, based variously on 
complexion, hair, facial angle, skull 
volume, skull length, skull shape, and 
area of presumed origin. Half of these 
systems refer to the existence of a 
"Caucasian" race, but the definitions 
vary radically, and in a majority of the 
systems Arabs and Jews are not classified 
as Caucasian at all.95 The editors of

94Samuel George Morton, Types of 
Mankind, p.88 (1854) (emphasis omitted).

95 See, e.q. . v. 8, p. 307 (Fisher 
distinguishes homo Caucasicus from homo 
Arabicus), 307 (according to Desmoulins

(continued...)



91
the Cyclopaedia denounced the whole idea 
of a "Caucasian” race as "incorrect and 
inconvenient. (V. 8, pp. 306-11).

Today the term "Caucasian" is 
generally identified with the system 
proposed in 1790 by the German naturalist
I. F. Blumenbach. The groups designated 
as Caucasian by Blumenbach, however, 
differ substantially from the views of 95

95(...continued)
the Caucasian race is one of several 
races falling within the "Japetic stock;" 
the North African, Syrian and Adamic 
races belong instead to the "Arabian 
stock"), 308 (Martin distinguishes
several separate nations in the Asiatic 
branch of the Japetic stock, including 
the Caucasic nation and the Semitic 
nation), 308-09 (according to Prichard
the Caucasians, now found in Russia, are 
members of the ancient Allophylian race, 
as distinguished from the three modern 
races; among the modern races the Arabs 
and Jews belong to the Semitic or Syro- 
Arabian race, rather than the Indo- 
European or Aryan race), 310 (according
to S.G. Morton the Caucasians are one 
branch of the Semitic species, whereas 
the Arabian tribes belong to the 
Ishmaelitic species).



92
subsequent ethnologists. On the Indian 
subcontinent, for example, Blumenbach 
expressly classified as Mongolian rather 
than Caucasian all inhabitants east of 
the Ganges, an area that includes all of 
Bangladesh and a significant portion of 
India. As for the rest of India, 
Blumenbach explained that "the Hindoos 
may be considered as a subdivision or 
secondary Race, distinct from the 
Caucasian." No subsequent ethnologist 
treats Asian Indians in this manner. 
Within Russia Blumenbach classified as 
Mongolian all inhabitants east of the Ob 
river, a region that coincides roughly 
with the region now known as Siberia. 
The population of this area, however, is 
overwhelmingly Russian, Tatar and



93
Finnish.96 In addition to the Ganges and 
the Ob, Blumenbach also delineated as the 
Caspian Sea as marking the eastern 
boundary of the Caucasian race, but the 
Caspian Sea lies approximately 2000 miles 
to the west of the Ganges and the Ob. 
How Blumenbach proposed to treat natives 
of the region west of the Ob and Ganges, 
but east of the western shore of the 
Caspian Sea, is entirely unclear; a 
significant portion of respondent's 
native Iraq is not, to use Blumenbach's 
definition of Caucasian "on this side 
... [of] the Caspian Sea."97

Early in this century this Court 
commented that "[t]he various authorities 
are in irreconcilable disagreement as to

96 Encyclopaedia Britannica, v. 20, 
pp. 599-600 (1963).

97A Manual of the Elements of 
Natural History, pp.36-38 (London 1825).



94
what constitutes a proper racial 
division." United States v. Thind. 261 
U.S. at 211-12 (1923). Any consensus of 
that era soon shifted. The 1910 
Encyclopedia Britannica. for example, 
classified as orientals the Finns, Lapps, 
and Turks, but characterized as Caucasian 
the Indonesians, the Hawaiians, and the 
Ainus of Japan. (V. 9, p. 850). The 
1986 Encyclopedia Britannica. on the 
other hand, transferred the Finns, Lapps 
and Turks into the Caucasian race, placed 
the Indonesians and Hawaiians in a new 
group denoted "Malay-Australoid-Oceanic," 
and described as still unresolved the 
appropriate classification of the Ainus. 
(V. 18, pp. 973, 976-77). The 
classification of Turks is of particular 
importance, since the Turks for centuries 
ruled much of the Arab world, and some



95
Arabs undoubtedly are in part of Turkish 
ancestry.

Acceptance of petitioners' proposed
distinction between Caucasians and non-
Caucasians would require this Court to
promulgate an official judicial system of
racial classification, delineating which
ethnic groups fall into which category.
Utilization of Blumenbach's original
system however, would be at odds with the
views of virtually all subsequent
ethnologists. It seems equally
inconceivable, on the other hand, that
the protections of section 1981 are to

*

expand and contract with the substantial 
changes in ethnological thinking that 
have occurred since 1866, and that might 
indeed occur in the future.98 Half a

98 With regard to Asian Indians, for 
example, the Encyclopedia Britannica

(continued...)



96
century ago this Court observed that the 
delineation of the members of a so-called 
Caucasian race was "the most debatable 
field in the whole range of 
anthropological studies", and that to 
arrange the peoples of mankind into such 
sharply bounded divisions is an 
undertaking of such uncertainty "that 
common agreement is practically 
impossible." United States v. Thind. 261 
U.S. 204, 211 n.4, 212. The only

peoples whom all authorities have agreed 
are Caucasian are the original 
inhabitants of Western Europe, a group of 
which respondent, of course, is not a 
member. 98

98(...continued)
notes "It is possible that the 
inhabitants of India will prove to belong 
to an Asiatic subrace, or even a separate 
race, serologically, but information is 
still lacking." V. 2, p. 52 (1963).



97
Petitioners apparently urge 

this Court to hold that Arabs as a group 
are Caucasian, and thus outside the 
protections of section 1981 (Pet. Br. 
29). But even under petitioners1 view of 
section 1981, a significant number of 
Arab-Americans would in fact be protected 
by that statute. The Arabs of the Sudan, 
like the Jews of Ethiopia, are black. 
Arabs of mixed or primarily black 
ancestry are frequently found in the 
southern portions of Morocco, Algeria, 
Libya, and Egypt. Among Asian Arabs, 
there is a significant amount of oriental 
ancestry. Respondents' native Iraq, 
for example, was occupied and ruled by 
the Mongols from 1258 to 1508. 
Subsequently the Turks, who until 
recently were classified as non- 
Caucasian, occupied Iraq from 1534 up to



98
1917." Similarly, although petitioners 
appear to maintain that all Mexican- 
Americans are "white," and thus outside 
the scope of section 1981, many Mexican- 
Americans are in fact of Indian 
ancestry99 100

Petitioners seem to contend that 
these problems can be. overcome simply by 
asking a complainant to declare whether 
he regards himself as Caucasian; indeed 
that contention seems to be the core of 
petitioners' argument. (Pet. Br. 9-10, 
18, 36). But whether respondent is
"Caucasian" within petitioners' proposed 
construction of section 1981 would turn 
on the legal definition of Caucasian, of 
which respondent could not have been

99 Encyclopedia Britannica, v. 21, 
p. 943 (1988).

100 Encyclopedia Britannica, v. 15, 
p. 387 (1963).



99
aware, and on the race of respondent's 
possibly remote ancestors, which 
respondent did not purport to describe. 
The fact that respondent chooses to 
regard himself as Caucasian is of no 
obvious relevance. Homer Plessy
expressly insisted that because he 
appeared to be white and had "the 
reputation of belonging to the dominant 
race" he was entitled to be treated as 
white, Plessv v. Fercruson. 163 U.S. 537, 
542, 549 (1896); neither the majority nor 
the dissent in Plessv thought Plessy's 
self-image to be of any legal relevance.

(2) Discrimination on the Basis of 
Color

In McDonald v. Santa Fe Trail 
Transportation Co. . 427 U.S. 273 (1976),
this Court held that section 1981 
prohibits discrimination on the basis of 
color as well as discrimination on the



1 0 0

basis of race. 427 U.S. at 287-95. 
Section 1981 clearly forbids an employer 
to discriminate on account of color even 
among individuals of the same race, and 
petitioners do not suggest otherwise. 
Petitioners urge only that the complaint 
and related pleadings cannot fairly be 
read as alleging discrimination on the 
basis of color, an issue not addressed by 
the lower courts.101

101The district court observed that 
"The thrust of plaintiff's claim, namely, 
that he was denied tenure by St. Francis 
College because he is an Arabian born in 
Iraq, is clear to all concerned." (Pet. 
App. 7(a). In an affidavit filed in 
opposition to petitioners' motion for 
summary judgment, respondent asserted "I, 
with others of Arab ancestry, have darker 
skin color than those customarily 
referred to as Caucasian". (J. App. 89- 
90) . Respondent can reasonably be 
understood to have contended in the 
district court that respondents 
discriminated against Arabs because of 
their color. The existence of that 
contention, we believe, provides an 
alternative ground for affirmance.



1 0 1

If, as McDonald holds, section 1981 
prohibits discrimination on the basis of 
color, there would be little sense to 
petitioner's constricted reading of the 
statutory prohibition against racial 
discrimination. Most Arabs, like most 
Asian Indians, are of a decidedly darker 
complexion than most Europeans.102 If 
St. Francis college discriminated against 
Arabs as a group because of their color, 
that would clearly violate section 1981, 
and entitle any injured Arab to relief. 
The difference between discriminating 
against Arabs because of their color, a 
practice undeniably forbidden by section 
1981, and discriminating against Arabs

102 This Court commented in United 
States v. Thind that "The Arabs and 
Swedes ... are scarcely less different 
than the Americans and Malays, who are 
set down as two distinct races." 261 U.S. 
at 211 n.4.



1 0 2

because of their ancestry, which 
petitioners urge to be legal, is elusive 
at best.

As a practical matter, many of the 
"Caucasian” groups that have been the 
most frequent victims of discrimination 
are, like Arabs, generally characterized 
by a complexion darker than Americans of 
European ancestry. Most of the section 
1981 ancestry cases have been brought by 
plaintiffs who would have been classified 
as non-white under Thind and 
Morrison.103 For those who regard a dark

103 See. e.g. . Shah v. Mt. Zion 
Hospital. 642 F.2d 268 (9th Cir. 1981) 
(Asian Indian); Shah v. Halliburton. 627
F. 2d 1055 (10th Cir. 1980) (Asian
Indian); Sethv v. Alameda County Water 
Dist.. 545 F.2d 1157 (9th Cir. 1986)
(Asian Indian); Raiender v. University of 
Minnesota. 24 F.E.P. Cas. 1051 (D. Minn. 
1979) (Asian Indian)i Anandam v . Fort 
Wayne Community Schools. 19 F.E.P. Cas.
773 (N.D. Ind. 1978) (Asian Indian); Jawa 
v. Fayetteville State University. 426

(continued...)



103
complexion as a sign of racial 
inferiority, the difference between 
discrimination on the basis of race and 
discrimination on the basis of color 
would be meaningless. 103

103(...continued)
F.Supp. 218 (E.D.N.C. 1976) (Asian
Indian); Sud v. Import Motors Limited. 
Inc.. 379 F. Supp. 1064 (W.D. Mich. 1974) 
(Asian Indians); Naraine v. Western 
Electric Co.. 507 F.2d 590 (8th Cir.
1974) (Asian Indian); Banker v. Time 
Chemical. Inc.. 579 F. Supp. 1183 (N.D.
111. 1903) (Asian Indian) Barvah v.
Young. 536 F. Supp. 356 (D.Md. 1982) 
(Asian Indian); Khawaia v. Wvatt. 494 F. 
Supp. 302 (W.D.N.Y. 1980) (Pakistani);
Tawari v. New Mexico State University. 
495 F. Supp. 1365 (D.N.M. 1980)
(Iranian) ; Abdulrahim v. Gene B. Glick 
Co. . 612 F. Supp. 256 (C.D. Ind. 1985)
(Syrian); Annova v. Hilton Hotels Coro.. 
733 F.2d 48 (7th Cir. 1984) (Iraqi); 
Alizadeh v. Safeway Stores. Inc.. 41 
F.E.P. Cas. 1556 (5th Cir. 1986) 
(Iranian); Ibrahim v. New York Dept, of 
Health. 581 F. Supp. 228 (E.D.N.Y. 1984)
(Egyptian); Saad v. Burns International 
Security Services. 456 F. Supp. 33. (C.D.
1978) ("Arabian”) Gonzalez v. Stanford 
Applied Engineering. 597 F.2d 1298 (9th 
Cir. 1979) (Mexican American).



104
III. THE THIRD CIRCUIT CORRECTLY REFUSED

TO GIVE RETROSPECTIVE EFFECT TO ITS
DECISION IN GOODMAN V . LUKENS STEEL
Two years ago this Court held in 

Wilson v. Garcia. 85 L.Ed.2d 254 (1985), 
that the limitations period for a section 
1983 action should be the period 
established by state law for an action 
for damages for personal injuries. The 
mile in Wilson was adopted for the avowed 
purpose of overturning the quite 
different standard that had been applied 
by the lower federal courts prior to 
1985. The majority opinion in Wilson 
expressly denounced the approach of most 
circuit courts, 85 L.Ed.2d at 264-65 and 
nn. 25, 32, 33, and did not dispute 
Justice O'Connor's observation that the 
Wilson rule overruled decisions in almost 
every circuit and "leaves behind a 
century of precedent." 85 L.Ed.2d at



105
220-71 (dissenting opinion). Although 
Wilson was intended to reduce in the long 
term both litigation and uncertainty, the 
immediate impact of that decision was to 
create turmoil in the large number of 
section 1983 cases that had been filed at 
a time when most circuits applied 
limitations rules different than that 
contemplated by Wilson. See Mulligan v. 
Hazard. 54 U.S.L.W. 3808 (1986) (White, 
J., dissenting from denial of 
certiorari).

The instant action arises under 
section 1981, not section 1983. The 
decision in Wilson was grounded on the 
legislative history of the Civil Rights 
Act of 1871, from which section 1983 
derives, not on the rather different 
concerns underlying the Civil Rights Act 
of 1866, from which section 1981 is



106
taken. 85 L.Ed.2d at 266-68. Despite
that difference, the third circuit has 
held that the Wilson rule should be
applied to section 1981 actions, thus 
shortening the limitations period in
Pennsylvania federal courts from six 
years to two. Goodman v. Lukens Steel 
Co. . 777 F. 2d 113 (3d Cir. 1985). This
Court subsequently granted certiorari in 
Goodman to decide whether this extension 
of Wilson to section 1981 cases was
correct. (No. 85-1626). We agree with 
the view advanced by the petitioners in 
Goodman that six years is the appropriate 
period of limitations period for a 
section 1981 action in Pennsylvania. 
Should this Court hold otherwise, 
however, we urge that Goodman should not 
be applied retroactively to the instant
case.



107
(1) Chevron Oil Co. v. Huson. 404 

U.S. 97 (1971), directs that three 
factors be considered in evaluating 
whether a judicial decision should be 
applied retroactively: (1) whether that 
decision "overrul[ed] clear past 
precedent on which litigants may have 
relied ... or ... decid[ed] an issue of 
first impression whose resolution was not 
clearly foreshadowed"; (2) whether 
retrospective operation will further or 
retard the purpose of the rule 
established by that decision, and (3) 
whether retroactive application "could 
produce substantial inequitable results." 
404 U.S. at 106-07. The interpretation 
of these principles is of considerable 
importance, for they affect the outcome 
not only of civil litigation, such as the 
instant case, but also of criminal



108
proceedings as well. See 404 U.S. at 
106. In a civil proceeding, whether or 
not a decision is applied retrospectively 
may affect whether a particular action 
may be time barred, as well as the amount 
of back pay which may be awarded.

Notwithstanding the ongoing disputes 
about how to apply these principles to 
the decision in Wilson v. Garcia, the 
circuit courts have readily arrived at a 
consensus on several issues. All the 
circuit courts to reach the question 
agree that Wilson should be applied 
retrospectively where it has the effect 
of lengthening the applicable limitations 
period.104 The decision in Wilson itself

104 Bartholomew v. Fischl. 782 F.2d 
1148, 1155-56 (3d Cir. 1986); Jones v.
Shankland, 800 F.2d 77, 80 (6th Cir.
1986); Farmer v. Cook 782 F.2d 780, 780- 
81 (8th Cir. 1986) ; Jones v. Preuit & 
Maudlin. 763 F.2d 1250 (11th Cir. 1985);

(continued...)



109
arguably constituted just such a 
retroactive application; Wilson applied a 
three year limitation period to section 
1983 actions arising in New Mexico, 
despite the fact that prior state 
decisions had utilized a two year 
rule.104 105 In states where Wilson had the 
effect of lengthening the limitations 
period, retrospective application is 
clearly appropriate under Chevron. Since 
it is the plaintiff who decides when a 
civil action will be filed, plaintiffs 
often if not ordinarily rely on the 
limitations rule in effect at a given­

104(...continued)
Rivera v . Green 775 F.2d 1381, 1383-84 
(9th Cir. 1985); Marks v. Parra. 785 F.2d 
1419, 1419-20 (9th cir. 1986).

105 DeVaroas v. New Mexico. 97 N.M. 
563, 642 P.2d 166 (1982). There was also 
tenth circuit precedent supporting the 
shorter limitations period. Zuniga v. 
AMFAC Foods. Inc.. 580 F.2d 380 (10th 
Cir. 1978) .



110
time. A defendant, on the other hand, is 
primarily if not exclusively concerned 
with the substantive commands of a 
statute; once an arguable violation has 
occurred, a defendant rarely takes 
actions that might be affected by 
knowledge of the relevant limitations 
period. None of the defendants in the 
post-Wilson litigation appear to have 
asserted that they relied in any way on 
the pre-Wilson caselaw.106

The circuit courts are similarly in 
agreement that Wilson should not be 
applied retroactively where Wilson had 
the effect of overturning a clearly 
established circuit rule, on which a 
plaintiff might have relied, establishing 
a longer period of limitations. A number

106 see Bartholomew v. Fischl. 782 
F.2d at 1148.



Ill
of decisions, including the third circuit 
decision in the instant case, have 
refused for this reason to give Wilson 
retroactive effect.107 Significantly, 
even the appellate decisions that have 
applied Wilson retroactively to dismiss a 
complaint have insisted that such 
retroactive application would have been 
inappropriate had the plaintiff had a 
stronger claim of reliance on pre-Wilson 
case law.108 In Wilson itself this Court 
quoted with apparent approval the tenth 
circuit’s decision that that circuit's

107Anton v. Lehpamer. 787 F.2d 1141, 
1142-46 (7th Cir. 1986) ; Ridcrwav v. 
Wapello County, Iowa. 795 F.2d 646, 647-
48 (8th Cir. 1986); Gibson v. United 
States. 781 F.2d 1334, 1339-40 (9th Cir. 
1986); Jones v. Bechtel. 788 F.2d 571, 
573-74 (9th Cir. 1986) ; Jackson v. City 
of Bloomfield. 731 F.2d 652, 653-55 (10th 
Cir. 1984) .

108Smith v. Pittsburgh. 764 F.2d 188, 
195 (3d Cir. 1985) ; Wvcoff v. Menke. 773
F. 2d 983, 986-87 (8th Cir. 1985).



112
decision in Wilson "would not be applied 
retroactively to bar 'plaintiffs' right 
to their day in court when their action 
was timely under the law in effect at the 
time their suit was commenced.'" Wilson 
v. Garcia. 85 L.Ed.2d at 260 n. 10, 
quoting Jackson v. City of Bloomfield, 
731 F.2d 652, 655 (10th Cir. 1984).

In applying this principle the 
courts of appeals have correctly looked 
to the state of the law in the particular 
circuit in which the action at issue 
arose. Chevron itself mandated precisely 
such an inquiry into the law of each 
circuit. The decision denied retroactive 
application in Chevron, this Court 
explained,

overruled a long line of decisions 
by the Court of Appeals for the 
Fifth Circuit.... When the 
respondent was injured ... these 
Court of Appeals decisions 
represented the law governing his



113
case. It cannot be assumed that he 
. .. could foresee that this 
consistent interpretation would be 
overturned. The most he could do 
was to rely on the law as it then 
was. 404 U.S. at 107.

This Court has also looked to the law of
each circuit in determining whether a
government official should have known
that his or her conduct was
unconstitutional. Procunier____ v.
Navarette. 434 U.S. 555, 563-65 (1978).

In the instant case, however,
petitioners assert that reliance on
circuit caselaw is never warranted, since
there is always a possibility that this
Court will overturn such a precedent.
That argument ignores not only the
holding to the contrary in Chevron and
Procunier. but also the manner in which
this Court exercises its discretionary
jurisdiction. Most issues decided by the
appellate courts are not accepted for



114
further review by this Court; for most 
litigants, and most issues, the law of 
the circuit is the law that will govern. 
Prior to granting certiorari in Garcia 
this Court had repeatedly refused to 
review appellate decisions regarding 
which state limitations rule should be 
applied in a section 1983 action.109

(2) Although the possible 
retroactive application of Wilson may in 
other contexts present difficult issues, 
the instant case is a relatively clear 
one. Under Wilson the appropriate period 
of limitations for a section 1983 action 
arising in Pennsylvania is now two years. 
(Pet. App., 13a). Petitioners urged that 
this two year rule should be extended to

109 This Court denied certiorari in 
at least eight such cases between 1979 
and 1982 alone. See Garcia v. Wilson. 
731 F.2d at 642-48.



115
section 1981 claims, and should be 
applied retroactively to claims arising 
in 1978, some seven years before Wilson 
was decided.

The panel below, however, noted that 
the third circuit, "from at least 1977 
until 1985, had applied Pennsylvania's 
six-year statute of limitations in 
discrimination cases brought under 
Section 1981." (Pet. App. 13a).110
After 1977, the panel observed, "a 
potential plaintiff ... could be fairly 
confident that a federal court in this 
Circuit would apply Pennsylvania's six- 
year statute of limitations to his or her 
section 1981 claim." (Pet. App. 15a). 
Because the law after 1978 was

110 The district court also noted 
that the third circuit had "uniformly 
concluded" that the six year limitation 
period applied to § 1981. (Pet. App.
58a) .



116
"absolutely clear," the court below 
reasoned, respondent "could reasonably 
have relied upon them when deciding to 
delay filing his Section 1981 claim." 
(Pet. App. 16a) . The third circuit thus 
concluded that retroactive application of 
Wilson and Goodman would be inappropriate 
in the instant case.

Petitioners urge, first, that the 
third circuit misread its own decisions 
when it held that the. applicability of 
the six-year limitation period was well 
established by 1977 or 1978. (Pet. App. 
50-53). A circuit court-'s reading of its 
own past decisions, however, is entitled 
to considerable deference. Such 
deference is particularly appropriate 
here, since Judge Adams, who joined the 
decision below, had also sat on the 
panels which decided several of the



117
earlier third circuit cases relied on.111 
In the instant case the appellate panel's 
reading of prior third circuit caselaw 
was clearly correct. Meyers v . Pennvpack 
Woods Home Ownership Ass'n. 559 F.2d 894, 
902 (3d Cir. 1977) held that a six year 
limitation rule would apply to a section 
1981 claim in which a plaintiff alleged 
"the denial of his right to lawfully 
pursue his ... employment." 559 F.2d at 
902. Davis v. United States Steel 
Supply, 581 F.2d 333 (3d Cir. 1978), 
again applied that six year limitation 
period, reasoning that a claim of racial 
discrimination in employment was 
analogous to wrongful interference with 
economic rights or interests, a tort

111Davis v. United States Steel 
supply. 581 F.2d 335 (3d Cir. 1978) and 
Mevers v. Pennvpack Woods Home Ownership 
Ass'n.. 559 F.2d 894 (3d Cir. 1977).



118
governed by the six-year rule under 
Pennsylvania law, rather than to a claim 
for assault, which state law required be 
filed within two years. 581 F.2d at 
3338-39. See also Skehan v. Board of 
Trustees of Bloomsburo State College. 590 
F. 2d 470, 476-77 (3d Cir. 1978); Liotta 
v. National Forge Co.. 629 F.2d 903, 906 
(3d Cir. 1980), cert, denied. 451 U.S. 
970 (1981).

Petitioners urge, in the 
alternative, that the third circuit 
decisions in Mayers, Davis. Skehan and 
Liotta were all vitiated as precedent by 
certain 1978 amendments to the 
Pennsylvania statutes. (Pet. Br. 52-53). 
The new Pennsylvania statute, like that 
which preceded it, provides a six-year 
limitations period for wrongful 
interference with an employment relation,



119
as well as for most contract actions. 
(Pet. App. 60-65) . Even after the 1978 
statute became effective, the third 
circuit continued to apply the six-year 
limitations rule to federal civil rights 
actions alleging unlawful denial of 
employment. Fitzgerald v. Larson. 741 
F.2d 32, 35 (3d Cir. 1984) vacated and 
remanded in light of Wilson v. Garcia. 85 
L.Ed.2d 424 (1985). Both the district 
court and the court of appeals in the 
instant case concluded that the minor 
changes made by the 1978 amendments were 
insufficient to render unreasonable 
further reliance on third circuit 
caselaw.112

112 Smith v. City of Pittsburgh. 764 
F.2d 188, 195 n. 3 (3d Cir. 1985),
suggests only that the decisions in Davis 
and Skehan, recognizing a six-year 
limitations rule where a plaintiff
challenges the legality of the

(continued...)



120
Respondent is not a plaintiff who 

has slept on his rights, but a 
complainant whose efforts to receive a 
hearing have been repeatedly frustrated 
by changes in the law. In September 
1978, well within the limitations period 
established by Title VII, respondent 
attempted to file a discrimination 
complaint with the Pennsylvania Human 
Relations Commission (PHRC). Although 
respondent submitted to PHRC written 
documents in support of this claim, PHRC 
refused to "docket" the complaint, 
explaining that "notification of 
impending termination at some future date 
was considered insufficient reason to 112

112(...continued)
substantive basis for his dismissal or 
other treatment, may be of lesser 
significance in determining the 
applicable limitations period where a 
plaintiff alleges only that he or she was 
dismissed without procedural due process.



121
docket the charge or to proceed with the 
investigation.” (Pet. App. 4a). PHRC 
instructed respondent that he could not 
file a charge based on the decision 
denying tenure, and directed him to do so 
only after "he had worked his last day at 
St. Francis College." (Id.) Respondent 
ended his employment at St. Francis on 
May 26, 1979, and filed a complaint with 
PHRC 27 days later. (Id.) PHRC 
subsequently reversed its filing rule, 
and dismissed respondent's complaint as 
untimely. Respondent then sought a right 
to sue letter from EEOC, and brought suit 
85 days after receipt of that letter. 
The Third Circuit, applying 
retroactively Ricks v. Delaware State 
College. 449 U.S. 250 (1980), held that 
respondent's Title VII claim was barred 
because respondent had not succeeded in



filing an administrative complaint in 
1978. (Pet. App. 9a-lla). The court of 
appeals also concluded, correctly in our 
view, that it would be unduly harsh to 
also apply retroactively both Wilson and 
Goodman. and thus deny respondent any 
hearing on the merits of his section 1981 
claim. (Pet. App. 17a-18a).

(3) The primary source of 
controversy regarding the retroactivity 
of Wilson concerns whether that decision 
should be given retrospective effect 
where the circuit court decision 
overturned by Wilson had itself been 
decided only after the action at issue 
was filed. In Goodman v. Lukens Steel 
Co.. for example, the complaint was filed 
in 1973, but the third circuit decisions 
establishing a six-year limitations 
period were not issued until 1977. That

122



123
problem has occurred in several circuits, 
and could theoretically arise in any 
circuit depending on the date on which a 
given action was commenced.

Although the situation that arose in 
Goodman presents a close case, we believe 
retroactivity would be inappropriate in 
such circumstances. Ordinarily a federal 
litigant must look to the law within his 
circuit to establish the rules that will 
govern his or her case; in some instances 
the law may already be "absolutely 
clear," but in others counsel will have 
to use a certain amount of judgment to 
ascertain how his or her case will be 
affected by existing circuit precedent. 
Where, as occurred in Goodman. counsel 
for plaintiffs correctly concluded that 
third circuit precedent, read in
conjunction with state law, would result



124
in a six- year limitations period in that 
circuit, it would seem peculiar to 
penalize a party for relying on a legal 
judgment which, with regard to the law of 
that circuit, proved absolutely correct.

More importantly, Wilson*s expressed 
goal of minimizing uncertainty and 
litigation can best be met by denying 
retroactive application in a situation 
like Goodman. Although Wilson overruled 
existing precedent in most federal 
circuits, many of those appellate 
opinions had only been issued within the 
last 15 years. If Wilson is applied 
retroactively to cases arising prior to 
the relevant circuit precedent, older 
cases will be subject to dismissal 
because of Wilson, while more recently 
filed cases in the same circuit will not. 
Applied in this way Wilson would result



125
in a lack of uniformity within a single 
circuit; such a divergence in the 
treatment of older and more recent cases 
has already emerged within several 
circuits.113

(4) Should this Court extend Wilson 
to actions arising under section 1981, 
and hold that that rule should be applied 
retroactively in Pennsylvania, this case 
should be remanded for further

113 Compare Goodman v. Lukens Steel 
Co.. 777 F.2d at 120 (3d Cir. 1985) 
(Wilson applied retroactively to action 
filed in 1973, prior to 1977 decision 
establishing longer limitations period), 
with Pet. App. 15a-16a (Wilson not 
applied retroactively to action filed in 
1980, after 1977 decisions establishing 
longer period of limitations); compare 
Wvcoff v. Menke. 773 F.2d 983, 984-85 
(8th Cir. 1985) (Wilson applied 
retroactively to action filed in 1981, 
prior to 1982 decision establishing 
longer period of limitations), with 
Ridgwav v, Wopello County, Iowa. 795 F.2d 
646, 647-49 (8th Cir. 1986) (Wilson not 
applied retroactively to action filed in 
1983, after 1982 decision establishing 
longer period of limitations).



126
consideration regarding whether the 
complaint was nonetheless timely filed. 
Both in the district court114 and in the 
court of appeals115 we urged that 
petitioners were estopped from asserting 
the limitations defense because the 
President of St. Francis College, as well 
as the chairman of respondent's 
department, had admonished respondent 
throughout 1978 to "do nothing" until 
there was "a final decision" on his still 
pending application for tenure. (Pet. 
App. 3a) . Such an admonition, if it 
occurred, would distinguish this case 
from Electrical Workers v. Robbins & 
Myers, Inc.. 429 U.S. 229, 234-35 (1976),

114 Plaintiff's Brief in Opposition 
to Motion for Summary Judgment, pp. 17- 
18.

115 Brief for Appellant, No. 80-1550 
(3d Cir.), pp. 23-24.



127
in which "all parties ... understood" 
that the initial termination order was 
the employer's "final decision", and from 
Delaware State College v. Ricks. 449 U.S. 
250, 261 (1980), where a final decision 
was merely the subject of a collateral 
grievance proceeding. If the asserted 
statements were in fact made in the 
instant case by college officials, the 
limitation period would begin to run no 
sooner than February 6, 1979, rather than 
February 23, 1978, and would thus fall 
within two years of the date in October 
1980 when the complaint was filed.

In the proceedings below, however, 
petitioners apparently denied that the 
College President and department chairman 
had indeed requested respondent to defer 
any action while his tenure application 
remained under consideration by the



1 2 8

faculty senate, the faculty affairs 
committee, and the tenure committee, or 
that those officials had represented that 
the college had not yet made a final 
decision.116 The lower courts did not 
resolve this dispute, since both believed 
that a six year limitation period should 
apply in this case.117 Accordingly, if

116 Brief for Appellees, No. 80-1550 
(3d Cir.), p. 23 n. 9 ("appellees do not 
waive the right to factually and legally 
dispute and contest the accuracy and 
admissibility of the statements or 
conclusions therein.")

117 The Title VII claim was held 
untimely by Judge Ziegler in 1981 (Pet. 
App. 50-55a) ; in 1985 the section 1981 
claim was dismissed by Judge Mencer for 
failure to state a claim on which relief 
could be granted. (Pet. App. 44a-45a). 
Although the estoppel claim was clearly 
raised when the section 1981 claim was 
considered by Judge Mencer, the court of 
appeals held that respondent could not 
rely on estoppel to save his Title VII 
claim because that argument had not been 
raised four years earlier when Judge 
Ziegler was considering the timeliness of 
the Title VII count. (Pet. App. 10a n.
7 ) •



129
this Court concludes that a two year 
limitation rule should be applied, the 
case should be remanded for a 
determination regarding the substance of 
the disputed representations.

CONCLUSION
For the above reasons the judgment 

and opinion of the third circuit should 
be affirmed.

Respectfully submitted,

CAROLINE MITCHELL*
1705 Allegheny Building 
429 Forbes Avenue 
Pittsburgh, PA 15219 
(412) 232-3131

JULIUS LeVONNE CHAMBERS 
ERIC SCHNAPPER 

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Respondent
♦Counsel of Record



APPENDIX A
Racial Classifications 

Utilized by the Bureau of Immigration 
and Naturalization

This table sets forth each of the 
classifications utilized by the Bureau, 
together with the annual report in which 
that classification first appeared. The 
classifications utilized in the 1899 
report remained in regular use until the 
1930*s; the other classifications 
appeared only intermittently. The 
spelling and parenthetical explanations 
are as they appear in the original 
reports.

Race Annual Reoort
African (black) 1899, p. 6
Albanian 1899, p. 6
Arabian 1901, p . 21
Armenian 1899, p. 21
Australian 1899, p.7
Bulgarian 1899, p . 21
Bohemian and Moravian 1899, p. 21
Brazilian 1913, p. 12
Canadian 1908, p. 176
Central American 1899, p. 6
Chinese 1899, p. 6
Croatian 1899, p . 6
Corean 1901, p . 19
Cuban 1899, p. 6
Dalmatian, Bosnian

and Herzegovinian 1899, p. 6
Danish 1908, p . 176

1 a



Race Annual Report
Dutch and Flemish 1899, p. 6
East Indian 1899, p. 6
English 1899, p. 6
Eskimo 1901, p . 21
Filipino 1901, p . 19
Finnish 1899, p. 6
French 1899, p. 6
German 1899, p. 6
Greek 1899, p. 6
Hawaiian 1899, p. 6
Hebrew 1899, p. 6
Hungarian 1899, p. 6
Iberic 1904, p . 55
Irish 1899, p. 6
Italian (northern) 1899, p. 6
Italian (southern) 1899, p. 6
Japanese 1899, p. 6
Keltic 1904, p. 55
Korean 1899, P • 7
Lettish 1908, p . 176
Lithuanian 1899, p. 6
Magyar 1899, p. 6
Mexican 1899, p. 6
Mongolic 1904, p . 55
Montenegrin 1899, p. 6
Norwegian 1908, p . 176
Pacific Islander 1899, p. 6
Polish 1899, p. 6
Portugese 1899, p. 6
Roumanian 1899, P-7
Russian 1899, P-7
Ruthenian (Russniak) 
Scandinavian

(Norwegians,
1899, P-7

Danes and Swedes) 1899, P • 7Scotch 1899, P-7
Servian 1899, P-7

2 a



Race Annual Report
Slavick
Slovak
South American
Spanish
Swede
Syrian
Teutonic
Transylvanian

(Siebenburger)
Turkish
Wallachian
Welsh
West Indian

1904, p. 55
1899, P • 7
1899, p. 6
1899, P-7
1908, p. 176
1899, P-7
1904, p. 55
1899, P-7
1899, P • 71899, P • 7
1899, P-7
1899, P-7

3 a



APPENDIX B
Racial Tables 

in
Annual Reports of the 
Commissioner General of 

Immigration

The Bureau of Immigration prior to 
1902 was part of the Department of the 
Treasury. Thereafter it was at times 
part of the Departments of Commerce 
(1902-1901), Labor (1909-1940) and 
Justice (1940-present).

Year of
Report Page Races Listed
1900

1901

1902

6-7 50 (including Syrian,
Hebrew, Spanish,
Cuban, Mexican,
Central American and 
South American)

9 10 (the "principal
races" immigrating to 
the United States; 
includes Hebrew and 
Spanish American) 

18-19 41 (including Cuban,
Hebrew, Mexican,
Spanish, and Syrian) 

12 12 (including Hebrew)
37 12 (including Hebrews

and Syrians)
62 31 (including

Hebrews, Spanish, and 
Syrian) (similar list 
at p.63)

4 a.



1903

1904

1905

Diagram 
No. 1 
10-11 
42
73

9

Chart 2

42
49-50

55

11
Chart 3

17 (including Hebrew) 
10 (including Hebrew) 
14 (including Hebrews 
and Syrians)
34 (including Cuban, 
Hebrew, Spanish and 
Syrian) (similar 
table at p.74)
18 ("principal racial 
elements of the total 
i m m i g r a t i o n "  ; 
includes Hebrews)
34 (including Hebrew, 
Cuban, Spanish, 
Syrian) (see p. 160 
"racial grand 
divisions of Europe" 
and "racial 
subdivisions")
14 (including Hebrews 
and Syrians)
39 ("subdivisions of 
races"; including 
Cuban, Hebrew, 
Mexican, Spanish, 
Spanish-American, and 
Syrian) (similar
tables at p. 54, 56,
57, 58 , 61, 62, 65,
66, 68 , 70, 72, 74
80- CO 108-9, 111)
5 ("grand division of 
race") (similar
tables at Chart 4, 
pp. 62, 63)
19 (including
Hebrews)
34 (including Hebrew, 
Cuban, Spanish and

5 a



62
1906 7

Chart 2

60

1908 166-67

176

1909 19

1912 7-8
1913 12-14
1914 235

246
330

1915 159

Syrian)
38 (including Cuban, 
Hebrew, Mexican,
Spanish, Spanish
American, and Syrian) 
(similar tables at 
pp. 62, 65, chart 11)
5 ("grand division of 
race")
6 (assets of various
races, including
Hebrews)
34 (including Hebrew, 
Syrian, Cuban,
Spanish, and Spanish 
American)
38 (including Cuban, 
Hebrew, Spanish and 
Syrian)
33 (including Hebrew, 
Mexican and Puerto 
Rican)
39 (including Cuban,
Hebrew, Spanish,
Spanish-American, and 
Syrian)
14 (including Hebrew
and Syrian)
11 (including Syrian, 
Hebrew, and Arabian)
9 (including Hebrew
and Syrian)
23 (including Hebrew 
and Syrian)
29 (including Hebrew, 
Mexican, Spanish
American, and Cuban) 
14 (including Hebrew, 
Mexican, Spanish,
Spanish-American, and

6 a.



1916

1917

1919

1920

1922

1923
1924
1929

1930
1931

Syrian)
110 13 (includes Hebrew,

Mexican, Spanish, and 
Syrian)

118 12 (including Hebrew,
Mexican, Spanish and 
Syrian)

46-50 15 (including
Syrians, a "subject 
race" of Turkey)

80 39 (including Cuban,
Hebrew, Mexican,
Spanish, Spanish-
American and Syrian) 

14 37 (including Cuban,
Hebrew, Mexican,
Spanish, Spanish-
American and Syrian) 

17 36 (including Hebrew,
Mexican, Spanish,
Spanish American and 
Syrian)

132 11 (including Hebrew,
Spanish, and Syrian) 

198 11 (including Hebrew
and Syrian)

146 9 (including Hebrew
and Syrian)

6 9 ("principal"
immigrant races;
includes Hebrew and 
Mexican)

28 12 (including Hebrew
and Spanish)

39 5 (including Mexican)
47 12 (including Hebrew,

Mexican and Spanish) 
50 9 (including Hebrew,

Mexican and Spanish) 
212 6 (including Spanish)

7 a



29 12 (including
Mexicans and Spanish)

37 11 (including Mexican
and Hebrew)

Note: Listings of immigrants by "race"
are also found in the U.S. Immigration 
Service Bulletin. The charts typically 
list approximately 38 races, including 
Cuban, Hebrew, Mexican, Spanish, Spanish- 
American and Syrian. See e.g. in volume 
1 issues no.l, p.5; no.3, pp. 5,7; no.4, 
p.3; no.5, pp. 1-2,6; no.7, p.3; no.8,
p . 3 (1918); no.10, p.3; no.11, pp.l,3-
4,8; no.12, p.3; no.13, p.3; no.14, p.3; 
no.15, p.3; no.16, p.3; no.17, pp.1,3,4.

8 a



APPENDIX C
"Race Classification",

Report of the Commissioner 
General of Immigration: 1904, 

pp. 161-62

"Race Classification." 
Ninety-five per cent of the 

immigration to this country comes from 
Europe. This European immigration may be 
separated by race into well-recognized 
divisions, which conform more or less to 
geographical location. With the
assistance of Prof. Otis T. Mason, 
curator of ethnology, National Museum, 
most of these different races or peoples, 
or more properly subdivisions of race, 
coming from Europe have been grouped into 
four grand divisions, as follows:

Teutonic division, from northern 
Europe: German, Scandinavian, English,
Dutch, Flemish, and Finnish.

9 a.



from southernIberic division,
Europe: South Italian, Greek, Portuguese, 
and Spanish; also Syrian from Turkey in 
Asia.

Keltic division, from western 
Europe: Irish, Welsh, Scotch, French, and 
North Italian.

Slavic division, from eastern 
Europe: Bohemian, Moravian, Bulgarian,
Servian, Montenegrin, Croatian,
Slovenian, Dalmatian, Bosnian,
Herzegovinian, Hebrew, Lithuanian,
Polish, Roumanian, Russian, Ruthenian, 
and Slovak.

The Mongolic division has also been 
added, to include Chinese, Japanese, 
Koran, East Indian, Pacific Islander, and 
Filipino.

Under "all other" have been included 
Magyar, Turkish, Armenian, African

10 a



(black), and subdivisions native to the 
Western Hemisphere.

By reason of blood mixture this 
classification is somewhat arbitrary, 
especially with regard to Finnish, 
Scotch, and Southern Germans."

11 a



APPENDIX D
Dictionaries Cited

Late nineteenth century dictionaries 
expressly based on Noah Webster's 
dictionaries are prefaced with 
[Webster's] .

Thomas Dyche, A New General English 
Dictionary (London 1750)

Benj[amin] Martin, A New Universal 
English Dictionary (London 1754)

D. Bellamy, A New Complete English 
Dictionary (London 1760)

Samuel Johnson, A Dictionary of the 
English Language (3d ed., Dublin 
1768)

N. Bailey, An Universal Etymological 
English Dictionary (London 1770)

John Ash, The New Complete Dictionary of 
the English Language (London 1775)

D. Fenning, The Royal English Dictionary 
(London 1775)

Thomas Sheridan, A Complete Dictionary of 
the English Language (London 1790)

John Walker, A Critical Pronouncing 
Dictionary (Dublin 1794)

James Barclay, A Complete and Universal 
English Dictionary (London 1799)

12 a.



Samuel Johnson, A Dictionary of the 
English Language (9th ed., London 
1805)

Noah Webster, An American Dictionary of 
the English Language (New York 1830)

Noah Webster, A Dictionary of the English 
Language (New York 1845)

Alexander Reid, A Dictionary of the 
English Language (New York 1846)

Joseph Worcester, A Universal and 
Critical Dictionary of the English 
Language (Boston 1846)

William Bolles, An Explanatory and 
Phonographic Pronouncing Dictionary 
of the English Language, (New London 
1847)

John Boag, A Popular and Complete English 
Dictionary (Glasgow 1847)

John Craig, A New Universal Etymological, 
Technological, and Pronouncing 
Dictionary of the English Dictionary 
(London 1849)

Hyde Clark, A New and Comprehensive 
Dictionary of the English Language 
(London 1855)

Dan S. Smalley, The American Phoenetic 
Dictionary of the English Language 
(Cincinnati 1855)

[Webster] William Webster, An Explanatory
13 a.



and Pronouncing Dictionary of the 
English Language (New York 1857)

James Donald, Chambers' English 
Dictionary (London 1872)

James Stormonth, Etymological and 
Pronouncing Dictionary of the 
English Language (Edinburgh 1874)

[Webster's] William G. Webster and 
William A. Wheeler, A Dictionary of 
the English Language (Academic 
Edition) (New York 1875)

John Wood, A Handy Dictionary of the 
English Language (New York 1875)

[Webster's] William Wheeler, Dictionary 
of the English language
(Springfield, Mass. 1876)

Johnson's Pocket Dictionary of the 
English Language (London c.1877)

The Dictionary of Every-Day Difficulties 
in Reading, Writing, and Speaking 
the English Language (New York 
c.1890)

Webster's Academic Dictionary (New York 
1895)

E.D.Price, The British Empire Dictionary 
of the English Language (London 
c.1899)

Chamber's Twentieth Century Definition of 
the English Language (London 1908)

14 a.



Walter Skeat, An Etymological Dictionary 
of the English Language (Oxford 
1910)

The Century Dictionary (New York 1911)
[Webster's], John Ogilvie, The New Modern 

English Illustrated Dictionary (New 
York 1913)

Webster's Collegiate Dictionary
(Springfield, Mass. 1916.

The Winston Simplified Dictionary 
(Philadelphia 1919)

Ernest Weekley, An Etymological
Dictionary of Modern English (London 
1921)

The Concise Oxford Dictionary of Current 
English (Oxford 1923)

Henry C. Wyld, ed., The Universal 
Dictionary of the English Language 
(London 1932)

Webster's Collegiate Dictionary
(Springfield, Mass. 1936)

Thorndike Century Senior Dictionary 
(Chicago 1941)

Odhams Dictionary of the English Language 
(London c.1946)

Funk and Wagnalls New College Standard 
Dictionary (New York 1947)

American College Dictionary (New York
15 a.



1953)
Thorndike-Barnhart Comprehensive Desk 

Dictionary (Garden City 1955)
Webster's Second New International 

Dictionary (Springfield, Mass. 1956) 
(first printing, 1934)

Oxford Illustrated Dictionary (Oxford 
1962)

Webster's Seventh New Collegiate 
Dictionary (Springfield, Mass. 1963)

Funk and Wagnalls Standard Dictionary of 
the English Language, International 
Edition (New York 1963)

Eric Partridge, Origins: A Short
Etymological Dictionary of Modern 
English (New York 1966)

Random House Dictionary of the English 
Language: The Unabridged Edition
(New York 1966)

Ernest Klein, A Comprehensive
Etymological Dictionary of the 
English Language (New York 1967)

American Heritage Dictionary of the 
English Language (Boston 1969)

Webster's Third New International 
Dictionary (Springfield, Mass. 1971) 
(first printing 1961)

Oxford American Dictionary (New York 
1980)

16 a.



Webster's Ninth New Collegiate Dictionary 
(Springfield, Mass. 1985)

17 a.



APPENDIX E
Definitions of "Race11

This table lists definitions of race 
which refer to groups of human beings. 
Prior to about 1900 the term "generation" 
meant, inter alia, descendants, all the 
offspring generated by an individual; it 
is in this now archaic sense that 
generation occasionally appears as a 
definition of race. Volumes printed 
before 1800 often have no page numbers. 
Emphasis, where it appears, is in the 
original.

"The flock, family, lineage, or 
generation proceeding from father to son, 
etc."

Dvche (1750)
"Stock, family, lineage."

Martin (1750)
"In genealogy, it denotes a lineage or 
extraction continued from father to son."

Bellamy (1760)
"1. A family ascending 2. Family 
descending... 3. A generation; a
collective family."

Johnson (1768)
"Lineage, family, stock."

Bailev (1770)
"A geneology, a family, a generation."

18 a



Ash (1775)
"A family ascending or descending. A
generation."

Fennina (1775)
"A family ascending; family descending; a 
generation, a collective family."

Sheridan (1790)
"A family ascending or descending. A
generation."

Barclay (1799)
"The lineage of a family, or contineud 
series of descendants from a parent who 
is called the stock."

Webster (1830)
"The lineage of a family; a generation."

Webster (1845), p.666
"The lineage of a family; a generation."

Reid (1846), p.334
"A family collectively; a family 
ascending; a family descending; ancestry; 
lineage; house; a generation."

Worcester (1846) p.754
"A family, ascending or descending. A 
generation; a collective family.

Bolles (1847), p.607
"The lineage of a family or continued 
series of descendants from a parent who 
is called the stock. A generation; a 
family of descendants.

Boaq (1847) p .1061

19 a.



"The lineage of a family, or continued 
stock of descendants; a generation; a 
family of descendants."

Craig (1849), p.505
"A family collectively; lineage."

Clark (1855) p.317
"A family collectively; a family 
ascending; a family descending; ancestry; 
progeny; 1ineage."

Smalley (1855) p.381
"The continued stock of descendants; a 
family of descendants..."

Webster1s (1857) p.286
"Descendants of a common ancestor; a 
family."

Donald (1872) p.645
"A continued series of descendants from a 
parent, called the 'stock'; a family."

Stormonth (1874) p.499
"Descendants of a common ancestor."

Webster's (1875) p.347
"The descendants of a common ancestor; a 
family, tribe, people or nation, believed 
or presumed to belong to the same stock."

Webster's (1876) p.589
"A family; generation."

Johnson's (1877) p.142
"The lineage of a family; a generation."

Everv-Dav (c.1890) p.259
"Descendants of a common ancestor; a

20 a



family, tribe or nation, of the same 
stock; lineage..."

Webster * s (1895) p.459
"Descent or lineage."

Price (c.1899) p.608
"The descendants of a common ancestor."

Chambers (1908) p.762
"A lineage, family."

Skeat (1910) p.494
"1. A genealogical line or stock; a class 
of persons allied by descent from a 
common ancestry; lineage; family; 
kindred; as the Levites were a race of 
priests; to be of royal or ignoble 
race...
2. An ethnical stock; a great division of 
mankind having in common certain 
distinguishing physical peculiarities, 
and thus a comprehensive class appearing 
to be derived from a distinct primitive 
source; as, the Caucasian race; the 
Mongolian race; the Negro race...
3. A tribal or national stock; a division 
or subdivision of one of the great racial 
stocks of mankind, distinguished by minor 
peculiarities; as, the Celtic race; the 
Finnic race is a branch of the Mongolian; 
the English, Franch, and Spaniards are 
mixed races."

Century (1911) p.4926
"1. The descendants of a common ancestor; 
a family, tribe, people or nation, 
believed to belong to the same stock; a 
lineage."
... 6. Ethnol. A division of mankind

21 a.



possessing constant traits, transmissible 
by descent, sufficient to characterize it 
as a distinct human type."

Webster's (1916)
"A class of beings having similar 
qualities; as, the human race; a division 
of human beings; as, the white race; a 
nation, as the English race; family line; 
as the race of Stuart kings."

Winston (1919) p.502
"Tribe, family."

Weeklev (1921) p.1190
"1. A group of individuals possessing 
certain physical characteristics in 
common and regarded as being of one blood 
and sprung from the same original stock; 
specif. a (ethnol.) a variety or 
division of mankind, the members of which 
possess certain distinctive, permanent 
physical characteristics in common, 
marking them off from others, the Negro. 
Mongolian, Jewish, race ... 2. a Lineage, 
family, descent, stock, breed: a man of 
ancient race..."

Universal (1932) p.955
"1. A group of persons ... having the 
same ancestry; as, the white race ... 2. 
a group regarded as one stock; as, the 
English race.

Thorndike (1941) p.751
"A division of mankind whose members 
share certain obvious physical 
characteristics distinguishing them from 
the other divisions; a stock or breed of 
people; a group of persons having a

22 a



common peculiarity."
Odhams (1946) p.862

"1. One of the major subdivisions of 
mankind, regarded as having a common 
origin and exhibiting a relatively 
constant set of physical traits.
2. Any homogeneous group of people or 
grouping of peoples having, or assumed to 
have, common characteristics; as, the 
Teutonic race. 3. Loosely, a nation; as, 
the German race. 4. A geneaological or 
fmaily stock; clan; as, the race of 
MacGregor. 5. House, pedigree; lineage; 
as, a noble race. 6. Any class of beings 
having characteristics uniting them or 
differentiating them from others; as, the 
race of lawyers."

Funk and Wagnalls (1947), p.964
"1. A group of prsons connected by common 
descent, blood or heredity ... 3. Ethnol. 
a subdivision of a stock, characterized 
by a more or less unique combination of 
physical traits that are transmitted in 
descent. 4. a group of tribes or peoples 
forming an ethnic stock."

American College (1953) p.997
"1. Group of persons connected by common 
descent or origin 2. a great division of 
mankind having certain physical 
peculiarities in common; the white race, 
the yellow race."

Thorndike-Barnhart (1955) p.639
"1. The descendants of a common ancestor; 
a family, tribe, people, or nation, 
believed or presumed to belong to the 
same stock; a lineage; a breed; also,

23 a.



more broadly, a class or kind of 
individuals with common characteristics, 
interests, appearance, habits, or the 
like, as if derived from a common 
ancestor; as, the race of doctors, the 
race of birds...5. State of being one of 
a special people or ethnical stock; 
hence, more narrowly, state of belonging 
to a particular group or family; also, 
the qualities, features, etc., resulting 
from this; as differences of race. 
8.Ethnol. A division of mankind
possessing constant traits, transmissible 
by descent, sufficient to characterize it 
as a distinct human type; a permanent 
variety of the genus Homo. While each 
race is presumably sprung from a common 
ancestry, there exist today few tribes or 
individuals of unmixed origin."

Webster's (1956) p.2048
"Group of persons ... connected by common 
descent; posterity of (person); house, 
family, tribe, or nation regarded as of 
common stock; distinct ethnical stock; 
any great division of living creatures; 
descend, kindred..."

Oxford (1962) p.695
"1. One of the major subdivisions of 
mankind, regarded as having a common 
origin and exhibiting a relatively 
constant set of physical traits ... 2.
Any group of people or any grouping of 
people having, or assumed to have, 
cokmmon characteristics. 3. A nation; 
the German race 4. A genealogical or 
family stock; clan; the race of 
MacGregor. 5. Pedigree; lineage; of 
noble race.

24 a.



Funk and Wagnalls (1963) p.1038
"A family, a tribe, a people."

Origins (1966) p.546
"1. A group of persons related by common 
descent, blood, or heredity... 3.
Ethnol. a subdivision of a stock, 
characterized by a more or less 
distinctive combination of physical 
traits that are transmitted in descent; 
the Caucasian race; the Mongoloid race
4. a group of tribes or peoples forming 
an ethnic stock ... 10. any group, class, 
or kind, esp. of persons: Journalists are 
an interesting race."

Random House (1966) p.1184
"Family, tribe."

Klein (1967) p .1294
"1. A local geographic or global human 
population distinguished as a more or 
less distinct group by genetically 
tranlsmitted physical characteristics ...
3. Any group of people united or 
classified together on the basis of 
common history, nationality, or 
geographical distribution. 4. A
geneaological line; lineage; family."

American Heritage (1969) pp.1074-5
"2a. the descendants of a common 
ancestor; a family, tribe, people, or 
nation belonging to the same stock (the 
impoverished scion of a noble— ) b. a 
class or kind of individuals with common 
characteristics, interests, appearance, 
or habits as if derived from a common 
ancestor (the— of doctors) (the whole—

25 a.



of mankind -Shak.) (the Anglo-Saxon— ) 
(the Jewish— ) ... 3f. a division of 
mankind posessing traits that are 
transmissible by descent and sufficient 
to characterize it as a distinct human 
type (Caucasian— ) (Mongoloid— ) ...
In technical discriminations, all more or 
less controversial and often lending 
themselves to great popular
misunderstanding or misuse, race is 
anthropological and ethnological in 
force, usually implying a distinct 
physical type with certain unchanging 
characteristics, as a particular color of 
skin or shape of skull (the Caucasian 
race) (the Malay race) (the Ethiopian 
race) although sometimes, and most 
controversially, other presumed common 
factors are chosen, as place of origin 
(the Nordic race) or common root language 
(the Aryan race). In popular use race can 
apply to any more or less clearly defined 
group thought of as a unit usually 
because of a common or presumed common 
past (the Anglo-Saxon race) (the Celtic 
race) (the Hebrew race)."

Webster's (1971) p.1870
"1. One of the great divisions of mankind 
with certain inherited physical 
characteristics in common (such as color 
of skin and hair, shape of eyes and noe) 
2. a number of people related by common 
descent."

Oxford American (1980) p.551
"2a. a family, tribe, people, or nation 
belonging to the same stock; b. a class 
of kind of people unified by a community 
of interests, habits, or characteristics

2 6 a.



(the English — ) ... 3c. a division of
mankind possessing traits that are 
transmissible by descent and sufficient 
to characterize is as a distinct human 
type. '•

Webster's (1985) p.969

27 a



APPENDIX F
Definitions of '•Kinsman," 
"Kinswoman", "Kin" and 

"Kindred"

Included are definitions in which 
the word "race" is used.

1. Kinsman
"A male cousin; one of the same race or 
blood."

Bellamy (1760)
"A man of the same race or family."

Johnson (1768)
"A man of the same race or family."

Sheridan (1790
"A man of the same race or family." 

Walker (1790)
"A man of the same race or family."

Webster (1830), p. 480 
Webster (1845), p. 219 
Webster's (1875), p. 241 
Webster's (1876), p. 410 
Webster's (1936), p. 555 
Webster's (1956), p. 1366 
Webster's (1971), p. 1245

"A man of the same race or family."
Worcester (1846), p. 403

"A man of the same race or family."
Bolles (1847), p. 445

"A man of the same race or family; one 
related by blood."

Boaq (1847), p. 760
28 a.



"A man of the same race or family; or 
related by blood.

Craig (1849) v. 2, p. 26
"A man of the same race or family."

Smalley (1855), p. 219
"A man of the same kin or race with
another."

Chambers (1872), p. 451
"A man of the same race or family."

Stormonth (1874), p. 308
"A man of the same kin or race with
another."

Chambers (1908), p. 501
"A man of the same race or family."

Century (1911), p. 3292
"3. A person of the same race."

American College (1947), p. 673
"3. A person of the same race."

Random House (1966), p. 789

2. Kinswoman
"One of the same family or race."

Webster (1857), p. 200

3. Kin
"Relation either of consanguinity or 
affinity . . . .  Relatives, those who 
are of the same race."

Johnson (1768)
"Relation of either consanguinity or 
affinity; relatives, those who are of the

29 a.



same race. ti

Walker (1794)
"Of the same family; a relation; of the 
same race."

Barclay (1799)
"1. Relation, properly by consanguinity 
or blood. 2. Relatives; kindred; 
persons of the same race."

Webster (1830), p. 479 
Webster (1845), p. 574

"Relatives; kindred; persons of the same 
race."

Boaa (1847), p. 759
"Relation of either consanguinity or 
affinity; relatives; kindred; persons of 
the same race."

Craig (1849) v. 2, p. 24
"Born of the same parents, immediate or 
remote; belonging to the same ancestors; 
descended or produced from the same race 
or stock."

Everv-Dav (c. 1890) 187
"Relatives; persons of the same race."

Webster's (1895), p. 310
"Collectively, persons of the same race 
or family."

Century (1911), p. 3286
"1. Archaic. A group of persons of the 
same stock, race or family."

Webster's (1936), p. 553
"Archaic, a group of persons descended 
from a common ancestor, or constituting a 
family, clan, tribe or race."

American College (1947), p. 672

30 a.



"A group of persons of the same stock, 
race or family."

Webster's (1956), p. 1363
"Synonyms: . . . family, kind, kindred,
race, . . .

Funk and Waqnalls (1963), p. 701

"3. A group of persons descended from a 
common ancestor, or constituting a 
family, clan, tribe or race."

Random House (1966), p. 787

4. Kindred
"Related, or of the same race."

Bellamy (1760)
"Belonging to the same race or family."

Webster's (1936), pp. 553-54
"A body of persons related to another, or 
a family, tribe, or race."

American College (1947), p. 672
"Belonging to the same family or race."

Webster's (1956), p. 1364

31 a.



APPENDIX G

Included are definitions utilizing the 
word race.

Definitions of “Family1*

"Whose who live in the same house; 
household... . Those that descend from 
one common progenitor; a race; a 
generation."

Johnson (1768)
"An household, those who live in the same 
family, a class, a tribe, a race, a
generation."

Ash (1775)
"Those who live in the same house,
household; those descended from one 
common progenitor, a race, a generation, 
a class, a tribe...."

Sheridan (1790)
"Those who live in the same house,
household; those that descended from one 
common progenitor, a race, a generation."

Walker (1794)
"2. Those who descended from one common 
progenitor; a tribe or race; a kindred; 
lineage."

Webster (1830) p. 328 
Webster (1854) p. 391

"A household; a race; a generation."
Reid (1846) p. 157

32 a.



"Persons collectively who live together 
in the house; ... Those who descend from 
one common progenitor; a race; a 
generation."

Worcester (1846) p.269
"Those who live in the same house;
household; those that descended from one 
common progenitor; a race; a generation."

Bolles (1847) p. 302
"Those who descend from one common
progenitor; a tribe or race; kindred; 
lineage."

Boacr (1847) p. 521
"Those who descend from one common
progenitor; a tribe or race; kindred; 
lineage."

Craig (1849) v. lip. 713
"Household; race; generation; class."

Smalley (1855) p.143
"A household; descendants from one common 
progenitor; race; lineage."

Stormonth (1874) p. 199
"2. A tribe or race; kindred."

Webster's (1875) p.159 
Webster's (1876) p.271

"A household; generation; race."
Johnson's (1877) p.64

"Those descended from one common 
progenitor; a tribe, clan, or race."

Webster's (1895) p.214
"A body of persons descended from a

33 a



common ancestor; tribe; race."
Price (1899) p.305

"The descendants of one common 
progenitor; race."

Chambers (1908) p.334
"In the most general sense, those who 
descend from a common progenitor; a tribe 
or race; kindred; lineage."

Century (1911) p.2133
"A body of persons descended from a 
common ancestor; tribe; race; genealogy."

Webster's (1913) p.318
"A body of persons descended from a 
common ancestor; tribe; race."

Winston (1919) p.221
"All descendants of a common ancestor, 
house, lineage ....; race, a group of 
people from common stock."

Oxford (1923) p.294
"2. a. Those descended from a common 
progenitor; a tribe, clan or race; 
kindred."

Webster's (1936) p.361
"5. Group of related people; tribe; clan; 
race."

Thorndike (1941) p.336
"3. A succession of persons connected by 
blood, name, etc.; a house; line, clan; 
tribe; race."

Funk & Waanalls (1947) p.423 
"3.a. Those descended (really or

34 a.



putatively) from a common progenitor; a 
tribe, clan or race; kindred; house; as, 
the family of Abraham."

Webster's (1956) p.916
"4. A succession of persons connected by 
blood, name, etc.; a house; line; clan; 
tribe; race."

Funk & Waanalls (1963) p.457

35 a.



APPENDIX H
Definitions of "Lineage11

Included are those definitions 
utilizing the word race.

"Flock or race."
Martin (1754)

"A race, flock, pedigree."
Bellamy (1760)

"Race; progeny; family."
Johnson (1768)
Fennina (1775)
Sheridan (1790)
Barclay (1799)
Reid (1846) p.245 
Smalley (1855) p.229

"Race, stock, pedigree."
Bailev (1770)

"A race, a progeny, the pedigree of a 
family."

Ash (1775)
"Race; progeny; descendants in a line 
from a common progenitor."

Webster's (1830) p.499 
Webster1s (1876) p.429

"Race; house; generation; progeny."
Worcester (1846) p.421

"Race; progeny; family; ascending or
3 6 a.



descending."
Bolles (1847) p.461 
Craia (1849) p.81

"Race; progeny; descendants in a line 
from a common progenitor."

Boaq (1847) V .2 p.791
"Family line or race, either ascending or 
descending."

Webster (1857) p.209
"Descendants in a line from a common
progenitor: race: a family."

Chambers (1872) p.471
"Descendants in a line from a common
progenitor; race; progeny."

Stormonth (1874) p.326
"Race; progeny; descendants."

Webster's (1875) p.252
"A race; descent."

Wood (1875) p .167
"Family, race, progeny."

Johnson's (1877) p.105
"Family, line or race; either ascending 
or descending."

Everv-Dav (1890) p. 117
" Descent in a line from a common 
progenitor; race."

Webster's (1895) p.332

37 a



common"Descendants in a line from a 
progenitor: race; family."

Chambers (1908) p.529
"Line of descent from an ancestor; hence, 
family; race; stock."

Century (1911) p.3464
"Descent in a line from a common
progenitor; race; family."

Webster's (1936) p. 582
"2. Family; race."

Thorndike (1941) p.542
"2. The line of descendants of a
particular ancestor; family, race."

American College (1953) p.702
"2. Family; race."

Thorndike-Barnhart (1955) p.462
"Descent in a line from a common
progenitor; race; family."

Webster's (1956) p.1436
"2. The line of descendants of a
particular ancestor; family; race."

Random House (1966) p.833

38 a.



APPENDIX I

Included are definiitons using the word 
"race".

Definitions of "Progeny11

"Offspring, issue, race."
Martin (1754)

"Offspring; race; generation."
Bellamy (1760)
Johnson (1768) 
Sheridan (1790)

"An offspring or issue."
Bailey (1770)

"An offspring, a race, a generation."
Ash (1775)

"A race; offspring."
Fenninq (1775)

"A race; offspring; generation."
Barclay (1799)

"Offspring; race; children; descendants 
of the human kind."

Webster (1830) p. 644
"Issue; offspring; race."

Webster (1945) p.308
"Offspring; descendants; issue; race."

Worcester (1846) p.566
"Offspring; race; generation."

Bolles (1847) p .591
39 a.



"Offspring; race; children."
Boaq (1847) p.1029

"Offspring; descendants; race; children."
Craig (1849) p.45

"Offspring; descendants; issue; race."
Smalley (1855) p.361

"Descendants; children; race."
Webster (1857) p.277

"That which is brought forth;
descendants; race; children."

Chambers (1872) p.625
"Offspring; race; descendants."

Stormonth (1874) p.478
"Offspring; race."

Wood (1875) p.217
"Descendants or offspring; children;
race; lineage."

Webster1s (1895) p.446
"That which is brought forth;
descendants; race; children."

Chambers (1908) p.733
"1. Offspring; issue; specif.: a
Descendants of humankind collectively; 
race; family; children."

Webster's (1956) p.1977

40 a



APPENDIX J
Definitions of "House11

Included are definitions utilizing 
the word race. Definitions of "house" in 
the sense in which it is used in the 
phrase "House of Windsor."

"3. Kindred, or race."
Martin (1754)

"6. Family of ancestors, descendants and 
kindred; race."

Johnson (1768)
"A family of ancestors, a race."

Ash (1775)
"A family of ancestors, descendants, and 
kindred, race."

Sheridan (1790)
"Family of ancestors, descendants, and 
kindred, race."

Walker (1794)
"Family, race, descendants, or kindred."

Barclay (1799)
"6. A family of ancestors; descendants 
and kindred; a race of persons from the 
same stock; a tribe."

Webster (1830) p. 420 
Webster's (1895) p. 275

"A family; a race."
Reid (1846) p.202

41 a



"A family of ancestors, descendants and 
kindred; 1ineage; race."

Worcester (1846) p.351
"Family of ancestors; descendants and 
kindred; race."

Bolles (1847) p.388
"A family of ancestors; descendants and 
kindred; a race of persons from the same 
stock; a tribe."

Boaq (1847) p.663
"Family of ancestors, descendants and 
kindred; a race of persons from the same 
stock; a tribe."

Craig (1849) p.948
"A family; a race; a household."

Smallev (1855)p.l85
"Family or race."

Webster (1857)p.l66
/

"3. A race; a tribe."
Webster1s (1875)p.205

"4. A race of persons from the same 
stock; a tribe; especially, a noble or 
illustrious race."

Webster's (1876)p.355
"Family or race, esp. of high rank."

Price (c.1899) p.399
"A family regarded as consisting of 
ancestors, descendants, and kindred; a 
race of persons from one stock."

Century (1911) p.2901

42 a.



"Family or race, especially of high 
rank."

Webster's (1913) p.442 
Winston (1919) p.293

"5. A family of kindred; esp., a noble 
family or illustrious race; as, the House 
of Windsor."

Webster's (1936) p.482
"A group of persons descended from the 
same stock; specifically, an illustrious 
race or dynasty."

Funk and Waonalls (1947) p.573
"5. A family of ancestors, descendants, 
and kindred; a race of persons from the 
same stock; a tribe; esp. a noble family 
or an illustrious race; as the house of 
Hanover."

Webster's (1956) p.1207
"4 ...b; a family of ancestors,
descendants, and kindred: a race of
persons from the same stock; esp.: a 
noble family . . . ."

Webster's (1971) p.1098

43 a.



APPENDIX K

Included are definitions using the 
word race.

Definitions of "Gypsy1*

"The Giosvs are a race of vagabonds which 
infest Europe, Africa and Asia, strolling 
about and subsisting mostly by theft, 
robbery and fortune telling."

Webster (1830) p.376 
Boaa (1847) p.594

"One of a race of vagabonds supposed to 
have come originally from India."

Reid (1846) p.182
"A word corrupted from Egyptians, and 
applied to a wandering race of people 
found in many countries in Europe."

Worcester (1846) p.326
"One of the Moultanee race wandering in 
Europe."

Clark (1855) p.168
" (litj.) Egyptian, because supposed to 
have come from Egypt,* one of a wandering 
race, originally from India, now found in 
most countries in Europe."

Chambers (1872) p.367
"A wandering race of people found in 
almost every European country, supposed 
to have come from India, through Egypt."

Stormonth (1874) p.229

44 a.



"One of a vagabond race, originally 
coming from India."

Wood (1875) p. 131 
Webster's (1875) p.193

"One of a vagabond race, coming 
originally from India, and now scattered 
over Europe, living by theft, fortune­
telling, tinkering, etc."

Webster's (1876) p.332
"One of a wandering, dark-skinned, and 
dark-eyed race, of Eastern, probably 
Hindu, origin."

Price (c.1899) p.354 
Webster's (1913) p.371

"One of a wandering race, originally from 
India, now scattered Europe."

Chambers (1908) pp.385-88
"One of a peculiar vagabond race which 
appeared in England for the first time 
about the beginning of the sixteenth 
century."

Century (1911) p.2518
"One of a race of wanderers."

Winston (1919) p.273
"Member of a wandering race . . .  of 
Hindu origin with dark skin and dark 
hair, living by basket-making, horse­
dealing, fortune-telling,etc."

Oxford (1923) p. 348
"Member of a nomadic race of Indian 
origin,inhabiting many parts of Europe, 
Asia, etc."

Universal (1932) p.483
45 a.



"1... one of a Caucasian race, coming 
originally from India."

Webster's (1936) p.445
"A member of a wandering race of people 
of Indian origin."

Odham's (1946) p.483
"One of a nomadic Caucasian minority race 
of Hindu origin."

American College (1953) p.541

46 a.