Shaare Tefila Congregation v Cobb Brief of Amici Curiae and Motion to Leave

    Nos. 85-2156 & 85-2169

I n  T h e

§«|jmnp QJmtrt itf tin' Stairs
O c to ber  T e r m , 1986

S h a a r e  T e f il a  C o n g r e g a t io n , et al,
v Petitioners,

J o h n  W il l ia m  C o b b , et al.,
Respondents.

S a i n t  F r a n c is  C o l l e g e , et al.,
v Petitioners,

M a j id  G h a id a n  A l - K h a z r a j i ,
______________Respondent.

On Writs of Certiorari to the United States 
Courts of Appeals for the Fourth and Third Circuits

MOTION FOR LEAVE TO FILE AND BRIEF OF THE 
ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH, THE 

NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE, THE 

LAW YERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 
LAW, THE AMERICAN JEWISH COMMITTEE, THE 

AMERICAN CIVIL LIBERTIES UNION, THE 
INTERNATIONAL NETWORK OF CHILDREN OF 

JEWISH HOLOCAUST SURVIVORS, THE AMERICAN  
GATHERING AND FEDERATION OF JEWISH  
HOLOCAUST SURVIVORS, THE JEWISH WAR  

VETERANS, THE INSTITUTE OF JEWISH LAW, AND 
THE CAPITAL LEGAL COUNCIL OF B’NAI B’RITH  
AS AMICI CURIAE SUPPORTING PETITIONERS 
SHAARE TEFILA CONGREGATION, ET AL., AND 
RESPONDENT MAJID GHAIDAN AL-KHAZRAJI

Gregg H. Levy *
Mitchell F. Dolin 

Covington & Burling 
1201 Pennsylvania Ave., N.W. 
Post Office Box 7566 
Washington, D.C. 20044 
(202) 662-6000 

Counsel for Amici Curiae

November 1986 * Counsel of Record
(Additional Counsel Listed on Inside Cover)

W il s o n  - Ep e s  P r in t in g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , D .C . 2 0 0 0 1



Of Counsel:
Michael Schultz 
Meyer Eisenberg 
David Brody 
Edward N. Leavy 
Steven M. Freeman 
Jill L. Kahn  

A nti-Defamation League 
of B ’nai B ’rith 

823 United Nations Plaza 
New York, New York 10017 
(212) 490-2525 

and
1640 Rhode Island Ave., N.W . 
Washington, D.C. 20036 
(202) 857-6660

Menachem Z. Rosensaft 
International Network 

of Children of Jewish 
Holocaust Survivors 

425 Park Avenue 
New York, New York 10022 
(212) 407-8000

Robert S. R ifkind 
Samuel Rabinove 
Richard T. Foltin

A merican Jewish Committee 
165 East 56th Street 
New York, New York 10002 
(212) 751-4000

E ileen Kaufman 
Institute of 

Jewish Law  
300 Nassau Road 
Huntington, New York 11743 
(516) 421-2244

Harold R. Tyler 
James Robertson 
Norman Redlich 
W illiam  L. Robinson 
Judith A. W inston 

Lawyers’ Committee for 
Civil Rights Under Law  

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

Rachael P ine 
A merican Civil Liberties 

Union Foundation 
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Joseph A. Morris 
Capital Legal Council 

of B ’nai B’rith 
5500 Friendship Boulevard 
Chevy Chase, Maryland 20815

Grover G. Hankins 
Joyce H. Knox

National A ssociation 
for the Advancement of 
Colored People 

4805 Mount Hope Drive 
Baltimore, Maryland 21215 
(301) 358-8900



I n  T h e

§npnmu' (fknxrt nf %
O c t o b e r  T e r m , 1986

Nos. 85-2156 & 85-2169

S h a a r e  T e f il a  C o n g r e g a t io n , et al,
Petitioners,

J o h n  W il l ia m  C o b b , et al.,
_________ Respondents.

Sa i n t  F r a n c is  C o l l e g e , et al.,
Petitioners,

M a j id  G h a i d a n  A l -K h a z r a j i ,
_________ Respondent.

On Writs of Certiorari to the United States 
Courts of Appeals for the Fourth and Third Circuits

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

FOR THE ADVANCEMENT OF COLORED PEOPLE, 
THE LAWYERS’ COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW, THE AMERICAN JEWISH  
COMMITTEE, THE AMERICAN CIVIL LIBERTIES 

UNION, THE INTERNATIONAL NETWORK OF 
CHILDREN OF JEWISH HOLOCAUST SURVIVORS, 

THE AMERICAN GATHERING AND FEDERATION OF 
JEWISH HOLOCAUST SURVIVORS, THE JEWISH WAR  
VETERANS, THE INSTITUTE OF JEWISH LAW, AND 
THE CAPITAL LEGAL COUNCIL OF B’NAI B’RITH FOR 

LEAVE TO FILE A BRIEF AMICI CURIAE

(i)



11

The Anti-Defamation League of B’nai B’rith, the Na­
tional Association for the Advancement of Colored People, 
the American Jewish Committee, the American Civil Lib­
erties Union, the International Network of Children of 
Jewish Holocaust Survivors, the American Gathering and 
Federation of Jewish Holocaust Survivors, the Jewish War 
Veterans, the Institute of Jewish Law, and the Capital 
Legal Council of B’nai B’rith, pursuant to Rule 36.3, 
hereby move for leave to file the attached brief amici 
curiae supporting the petitioners in Shaare Tefila Con­
gregation v. Cobb, No. 85-2156, and the respondent in 
Saint Francis College v. Al-Khazraji, No. 85-2169. Con­
sent to file this brief has been obtained from counsel for 
all parties to No. 85-2169; letters expressing that consent 
have been lodged with the Clerk of the Court. With re­
spect to No. 85-2156, consent to file the brief has been 
obtained from all of the petitioners and from the only 
respondent who has entered an appearance in this Court; 
letters expressing such consent have been filed with the 
Clerk of this Court. Because the amici have been unable 
to obtain consent from the remaining respondents in No. 
85-2156, most of whom could not be located, this motion 
is necessary.

The background and concerns of the amici are fully set 
forth in the Interest of Amici Curiae section of the at­
tached brief. In sum, the Anti-Defamation League, the 
NAACP, the Lawyers’ Committee for Civil Rights Under 
Law, the American Jewish Committee, and the American 
Civil Liberties Union have sought for several decades to 
promote good will and mutual understanding among all 
Americans and to combat racial and religious prejudice 
in the United States. Over the years, each organization 
has appeared frequently before this Court as amicus 
curiae to advance constructions of the constitution and 
federal civil rights laws that would ensure appropriate 
federal remedies for victims of racial, religious, and other 
forms of discrimination. The International Network and 
the American Gathering are organizations of Jewish



iii

survivors of the Nazi holocaust and their children. The 
Jewish War Veterans is comprised of Jewish individuals 
who have served in the American armed forces. The In­
stitute of Jewish Law is concerned with research and 
scholarship in the field of Jewish legal studies. The 
Capital Legal Council of B’nai B’rith is comprised of 
Jewish members of the bench, bar, and related profes­
sions.

The amici believe that this Court should confirm the 
rule of law that extends to Arabs, Jews, and other minor­
ity and ethnic group members the remedies provided in 
section 1 of the Civil Rights Act of 1866, 42 U.S.C. 
§§ 1981 & 1982. The amici organizations and their mem­
bers bring to the issues raised in this case perspectives 
and experiences that are broader than and different from 
those of the parties. On October 6, 1986, many of these 
amici were granted leave to file a brief, and did file a 
brief, urging that certiorari be granted in No. 85-2156. 
The amici now respectfully seek the Court’s leave to file 
the attached brief on the merits.

Respectfully submitted,

Gregg H. Levy *
Mitchell F. Dolin 

Covington & Burling 
1201 Pennsylvania Ave., N.W. 
Post Office Box 7566 
Washington, D.C. 20044 
(202) 662-6000 

Counsel for Amici Curiae

* Counsel of Record



IV

Of Counsel:
Michael Schultz 
Meyer E isenberg 
David Brody 
Edward N. Leavy 
Steven M. Freeman 
Jill L. Kah n  

A nti-Defamation League 
of B ’nai B ’rith 

823 United Nations Plaza 
New York, New York 10017 
(212) 490-2525 

and
1640 Rhode Island Ave., N.W. 
Washington, D.G. 20036 
(202) 857-6660

Menachem Z. Rosensaft 
International Network 

of Children of Jewish 
Holocaust Survivors 

425 Park Avenue 
New York, New York 10022 
(212) 407-8000

Robert S. Rifkind  
Samuel Rabinove 
Richard T. F oltin 

A merican Jewish Committee 
165 East 56th Street 
New York, New York 10002 
(212) 751-4000

E ileen Kaufman 
Institute of 

Jewish Law  
300 Nassau Road 
Huntington, New York 11743 
(516) 421-2244

Harold R. Tyler 
James Robertson 
Norman Redlich 
W illiam L. Robinson 
Judith A. W inston 

Lawyers’ Committee for 
Civil Rights Under Law  

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

Rachael P ine 
A merican Civil Liberties 

Union Foundation 
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Joseph A. Morris 
Capital Legal Council 

of B ’nai B’rith 
5500 Friendship Boulevard 
Chevy Chase, Maryland 20815

Grover G. Hankins 
Joyce H. Knox 

National A ssociation 
for the Advancement of 
Colored People 

4805 Mount Hope Drive 
Baltimore, Maryland 21215 
(301) 358-8900

November 1986



QUESTION PRESENTED

Whether Arabs, Jews, and other minority group mem­
bers who do not belong to distinct “non-white races,”  but 
who are the victims of racially-motivated discrimination, 
are entitled to seek relief under section 1 of the Civil 
Rights Act of 1866, 42 U.S.C. §§ 1981 & 1982.

(v)





Page

MOTION OF THE ANTI-DEFAMATION LEAGUE 
OF B’NAI B’RITH, ET AL., FOR LEAVE TO FILE 
A  BRIEF AMICI CU R IAE............................................... i

QUESTION PRESENTED ...................................................  v

TABLE OF CONTENTS ........................................................  vii

TABLE OF AUTHORITIES................................................  viii

INTEREST OF AMICI CURIAE .......................................  2

SUMMARY OF AR GU M ENT.............................................  5

ARGUM ENT..............................................................................  6

I. The Language and Legislative History of the
Civil Rights Act of 1866 Confirm That the Stat­
ute Protects White and Non-White Minority and 
Ethnic Group Victims of Racially-Motivated 
Discrimination..............................................................  6

A. The Racial Character of the Discrimination
Rather Than the Racial Status of the Plain­
tiff is the Focus of the Statute ...........................  7

B. The Statute Was Intended to be Construed
Broadly and to Protect Minority and Ethnic 
Group Members Regardless of Whether They 
Belong to Distinct Non-White Races ............  10

II. Federal Remedies for Racially-Discriminatory
Conduct Should Not be Limited by Narrow and 
Arbitrary Definitions of “Race” .............................  13

III. Section 1981 and 1982 Plaintiffs Should be Per­
mitted to Proceed With Their Claims Unless 
Their Allegations Are Clearly Inconsistent With 
the Possibility That They Were the Victims of 
Racial Discrimination ................................................ 20

CONCLUSION ..........................................................................  22

TABLE OF CONTENTS

(vii)



viii

TABLE OF AUTHORITIES
Cases: Page

Alizadeh V. Safeway Stores, Inc., 802 F.2d 111 (5th
Cir. 1986) .......................................................................  21

Bob Jones University v. United States, 461 U.S,
574 (1983).......................................................... 3

Brownw. Board of Education, 347 U.S. 483 (1954).. 3
City of Greenwood v. Peacock, 384 U.S. 808

(1966) .............................................................................  8
City of Memphis V. Greene, 451 U.S. 100 (1981).... 10
Delaware State College v. Ricks, 449 U.S, 250

(1980) ...............................................................................  21
Erebia V. Chrysler Plastic Products Corp., 772 F.2d 

1250 (6th Cir. 1985), cert, denied, 106 S.Ct. 1197
(1986) ...................................................................... _______ 22

Ex parte Mohriez, 54 F. Supp. 941 (D. Mass.
1944) ................................................................................  19

Frank V. Mangum, 237 U.S. 309 (1915) ....... ........ . 2
Georgia V. Rachel, 384 U.S. 780 (1966) ...................... 8
Hirabayashi v. United States, 320 U.S. 81 (1943).. 18
In re Hassan, 48 F. Supp, 843 (E.D. Mich. 1942).... 19
In re Mohan Singh, 257 F. 209 (S.D. Cal. 1919).... 20
Jones V. AlfredH. Mayer Co., 392 U.S. 409 (1968).. 3 ,8,

10,14
McDonald v. Santa Fe Trail Transportation Co.,

427 U.S. 273 (1976)................................ 3, 6, 7, 8, 9 ,10 ,11
Manzanares V. Safeway Stores, Inc., 593 F.2d 968

(10th Cir. 1979) ........................ ...... ....... ...................  u ,  22
Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972).... ’ 16
Morrison V. California, 291 U.S. 82 (1934) ........ 13
Near V. Minnesota, 283 U.S. 697 (1931)..................  18
Ortiz v. Bank of America, 547 F. Supp. 550 (E.D.

Cal. 1982) ............................................................11,15,17, 22
Ramos V. Flagship International, Inc., 612 F. Supp.

148 (E.D.N.Y. 1985)................................................... 22
Runyon V. McCrary, 427 U.S. 160 (1976).................. 6
Shelley V. Kraemer, 334 U.S. 1 (1948).......... ...........  3
Sidlivan V. Little Hunting Park, Inc., 396 U.S. 229

_(1969) ...............................................................................3, 9, 10
Tillman v. Wheaton-Haven Recreation Ass’n, 410 

U.S. 431 (1973)............................................................ 6, 8> 9



IX

Page

United States V. Price, 383 U.S. 787 (1966)...........  10
United States V. Bhagat Singh Thind, 261 U.S. 204

(1923)..........................................................................13,17, 20
Woods-Drake v. Lundy, 667 F.2d 1198 (5th Cir.

1982) ................................................................................  9

Statutes and Legislative Materials:
Civil Rights Act of 1866

42 U.S.C. § 1981.......................... ............................. passim
42 U.S.C. § 1982.....................................   passim

Cong. Globe, 39th Cong., 1st Sess. (1866)........... 10, 11,12

Miscellaneous:
G. Barton, A Sketch of Semitic Origins (1902)—. 16
J. Barzun, Race: A  Study in Superstition (1965).. 17
R. Benedict, Race and Racism (1942)................... . 19
I. Berlin, Against the Current: Essays in the His­

tory of Ideas (1980).................................................... 18
Dickey, Falling Out of Love with the Arabs, News­

week, Aug. 25, 1986, at 4 4 ........................................ 16
G. Eliot, Daniel Deronda (1876) .................................. 18
T. Gossett, Race: The History of An Idea in

America (1963).....      15
Greenfield & Kates, Mexican Americans, Racial 

Discrimination, and the Civil Rights Act of 1866,
63 Ca l . L. Rev. 662 (1975) ................................12,17, 22

L. Hand, The Spirit of Liberty (3d ed. 1974)  ........  18
B. Lewis, Semites and Anti-Semites (1986).............  15,16
S. Molnar, Races, Types, and Ethnic Groups

(1975)............................................................................... 17
A. Montagu (ed.), The Concept of Race (1964).... 14,17 
A. Montagu, Man’s Most Dangerous Myth: The

Fallacy of Race (5th ed. 1974) ............    18
Newell, Arab Bashing in America, Newsweek,

Jan. 20, 1986, at 2 1 .....................................................  16
Note, Legal Definition of Race, 3 Race Rel. L. Rep.

571 (1958)...................................................................... 20

TABLE OF AUTHORITIES— Continued



X

Page
Note, National Origin Discrimination Under Sec­

tion 1981, 51 F ordh am  L. Re v . 919 (1983)........  11,22
M. Schappes (ed.), A Documentary History of the

Jews in the United States (3d ed. 1971) ............  18
N. Webster, An American Dictionary of the Eng­

lish Language (C. Goodrich rev. Springfield,
Mass. 1860) ....................................................................  12,18

Webster’s Third New International Dictionary
(1981) ............................................................................. 17, 18

J. Worcester, A Universal and Critical Dictionary
of the English Language (Boston, Mass. 1874).. 16

TABLE OF AUTHORITIES— Continued



I n  T h e

l$itpran? (Emrrt at %  lUmtvh
O c t o b e r  T e r m , 1986

Nos. 85-2156 & 85-2169

S h a a r e  T e f il a  C o n g r e g a t io n , et al.,
Petitioners,

J o h n  W il l ia m  C o b b , et al.,
________  Respondents.

S a i n t  F r a n c is  C o l l e g e , et al.,
Petitioners,v.

M a j id  G h a id a n  A l -K h a z r a j i ,
________  Respondent.

On Writs of Certiorari to the United States 
Courts of Appeals for the Fourth and Third Circuits

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

FOR THE ADVANCEMENT OF COLORED PEOPLE, 
THE LAWYERS’ COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW, THE AMERICAN JEWISH  
COMMITTEE, THE AMERICAN CIVIL LIBERTIES 
UNION, THE INTERNATIONAL NETWORK OF 

CHILDREN OF JEWISH HOLOCAUST SURVIVORS, 
THE AMERICAN GATHERING AND FEDERATION OF 
JEWISH HOLOCAUST SURVIVORS, THE JEWISH WAR  
VETERANS, THE INSTITUTE OF JEWISH LAW, AND 

THE CAPITAL LEGAL COUNCIL OF B’NAI B’RITH AS 
AMICI CURIAE SUPPORTING PETITIONERS SHAARE 
TEFILA CONGREGATION, ET AL., AND RESPONDENT 

MAJID GHAIDAN AL-KHAZRAJI



2

This brief is submitted on behalf of the Anti-Defama­
tion League of B’nai B’rith, the National Association for 
the Advancement of Colored People, the Lawyers’ Com­
mittee for Civil Rights Under Law, the American Jewish 
Committee, the American Civil Liberties Union, the In­
ternational Network of Children of Jewish Holocaust 
Survivors, the American Gathering and Federation of 
Jewish Holocaust Survivors, the Jewish War Veterans, 
the Institute of Jewish Law, and the Capital Legal Coun­
cil of B’nai B’rith in support of the petitioners in Shaare 
Tefila Congregation v. Cobb, No. 85-2156, and the re­
spondent in Saint Francis College v. Al-Khazraji, No. 
85-2169. The brief is being filed jointly in the two cases 
because they pose similar issues, as recognized by this 
Court’s Order of October 6, 1986, setting their oral argu­
ments in tandem.

INTEREST OF AMICI CURIAE

B’nai B’rith, which was founded in 1843, is the oldest 
civic service organization of Jews in this country. The 
Anti-Defamation League of B’nai B’rith was formed in 
1913, partially in response to the virulent anti-Semitism 
surrounding the Atlanta trial of Leo Frank, see Frank v. 
Mangum, 237 U.S. 309, 349-50 (1915) (Holmes & 
Hughes, JJ., dissenting). Throughout its history, the 
Anti-Defamation League has sought, as its charter pre­
scribes,  ̂ “ to secure justice and fair treatment to all citi­
zens alike and to put an end forever to unjust and unfair 
discrimination against and ridicule of any sect or body of 
citizens.” The Anti-Defamation League remains vitally 
interested in protecting the civil rights of all persons and 
in assuring that every individual receives equal treatment 
under the law regardless of his or her race, religion, or 
ethnic origin.

In support of these objectives, the Anti-Defamation 
League has for several decades filed amicus curiae briefs 
in this and other courts. These briefs, including several



3

dealing with the statute at issue in this case, have, as 
appropriate, urged the unconstitutionality or illegality of 
racially-discriminatory laws and practices and the pro­
vision of appropriate federal remedies to victims of such 
discrimination. See, e.g., Bob Jones University v. United 
States, 461 U.S. 574 (1983) ; McDonald v. Santa Fe Trail 
Transportation Co., 427 U.S. 273 (1976); Sullivan v. 
Little Hunting Park, Inc., 396 U.S. 229 (1969) ; Jones v. 
Alfred H. Mayer Co., 392 U.S. 409 (1968) ; Brown v. 
Board of Education, 347 U.S. 483 (1964); Shelley v. 
Kraemer, 334 U.S. 1 (1948).

The Anti-Defamation League’s interest in these cases 
arises both from its general goals of promoting and se­
curing tolerance and equal justice and from its history of 
fighting anti-Semitic hatred and violence. The Fourth 
Circuit decision in the Shaare Tefila case, if left standing, 
would deprive victims of anti-Semitic conduct of an impor­
tant federal civil rights remedy. Moreover, the rule ar­
ticulated in that decision would bar this essential remedy 
to members of many other minority or ethnic groups, 
including Arabs such as respondent in the Saint Francis 
College case. Accordingly, the Anti-Defamation League 
and the other amici appear to urge this Court clearly to 
hold that section 1 of the Civil Rights Act of 1866, 42 
U.S.C. §§ 1981 & 1982, protects all victims of racially- 
motivated discrimination.

The National Association for the Advancement of 
Colored People is a New York non-profit corporation. 
Among its principal aims are the promotion of equality 
of rights and the eradication of caste or race prejudice 
among the citizens of the United States.

The Lawyers’ Committee for Civil Rights Under Law 
is a national civil rights organization that was formed 
in 1963 at the request of President Kennedy to provide 
legal representation to blacks who were being deprived of 
their civil rights. The Lawyers’ Committee has been ac-



4

tive throughout its history in pursuing legal remedies on 
behalf of the victims of racial discrimination.

The American Jewish Committee is a national organ­
ization, founded in 1906 and dedicated to the preserva­
tion of civil rights and harmonious relations among 
Americans of different backgrounds. The Committee 
believes that the protection of civil rights for all best 
secures the rights of Jewish Americans.

The American Civil Liberties Union is a non-profit 
membership organization dedicated to protecting the fun­
damental rights of the people of the United States.

The International Network of Children of Jewish Holo­
caust Survivors, through affiliated groups in the United 
States, Canada, Israel, and Europe, represents five thou­
sand sons and daughters of European Jews who survived 
the Nazi holocaust. The American Gathering and Federa­
tion of Jewish Holocaust Survivors is an umbrella organ­
ization representing the interests of tens of thousands 
of survivors of the holocaust living in the United States.

The Jewish War Veterans, founded in 1896, is the 
oldest active veterans’ organization in the United States. 
It was established to oppose anti-Semitism and to call 
attention to the contributions of Jews to American mili­
tary history.

The Institute of Jewish Law, an organization affiliated 
with Touro College Jacob D. Fuchsberg Law Center, was 
founded in 1980 to facilitate research and scholarship in 
the field of Jewish legal studies.

The Capital Legal Council of B’nai B’rith is a joint 
unit of B’nai B’rith and B’nai B’rith Women. Composed 
of Jewish members of the bench, bar, and related profes­
sions, it seeks to strengthen through study and advo­
cacy those traditional Jewish precepts— the rule of law, 
the freedom and dignity of the individual, and the impor­
tance of religious freedom— that are at the core of the 
American experiment.



5

SUMMARY OF ARGUMENT

These cases present the issue of whether minority 
and ethnic group members who do not belong to distinct 
“non-white races,” but who allege discrimination of a 
racial or racist character, are entitled to invoke section 
1 of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 & 
1982. In one case, a Jewish congregation’s lawsuit seek­
ing relief for the admittedly racist desecration of its 
synagogue was dismissed because Jews are not members 
of a distinct “non-white”  race. Shaare Tefila Congrega­
tion, Pet. App. A, at 7a. In the other case, the lower 
court expressly rejected such a narrow construction of the 
statute and held that an Arab alleging racially-motivated 
discrimination, despite his taxonomic classification as a 
Caucasian, could state a cause of action under the statute. 
Saint Francis College, Pet. App. at 25a-27a. Presumably 
because of this clear conflict, the Court granted certio­
rari and has set the cases for argument in tandem.

The controlling precedents of this Court, the legislative 
history of the statute, and the plain realities of racial 
prejudice require that the Court confirm that the Civil 
Rights Act of 1866 protects all victims of racial dis­
crimination. While this Reconstruction-era statute was 
intended principally to protect blacks from victimization 
by whites, this Court previously has removed any doubt 
that the Act protects whites and non-whites alike from 
discrimination that is racial in character. Accordingly, 
and notwithstanding their Caucasian racial status, Arab 
and Jewish victims alleging racially-motivated discrimi- 
tion do in fact state claims under the Civil Rights Act 
of 1866. Unless the plantiff’s allegations are inconsistent 
with the notion of racial discrimination broadly con­
strued, the plaintiff is entitled to proceed to his or her 
proof and, if successful, to obtain the relief provided 
by sections 1981 and 1982.



6

ARGUMENT

I. The Language and Legislative History of the Civil 
Rights Act of 1866 Confirm That the Statute Protects 
White and Non-White Minority and Ethnic Group 
Victims of Racially-Motivated Discrimination.

Section 1 of the Civil Rights Act of 1866, 42 U.S.C. 
§§ 1981 & 1982, extends to “all persons” various enumer­
ated rights on the same terms as those rights are “en­
joyed by white citizens.” 1 Ten years ago, this Court 
held unambiguously that one need not be “non-white”  to 
invoke the statute. McDonald v. Santa Fe Trail Trans­
portation Co., 427 U.S. 273, 287 (1976). Prompted how­
ever by McDonald's, dictum that the statute deals with 
discrimination that is racial in character, id., the lower 
federal courts, in the intervening years, have devised 
numerous and conflicting tests by which the statute’s 
coverage is withheld from or extended to various groups 
that may not technically qualify as distinct “non-white 
races.” The decisions of the courts of appeals in the 
cases below, involving Jewish and Arab plaintiffs, reflect 
at least two of the different and inconsistent approaches.

The decision of the Fourth Circuit in the Shaare Tefila 
case clearly conflicts with the statute and its legislative 
history. That decision would require a plaintiff to

1 While respondent in Saint Francis College invoked section 
1981, petitioners in Shaare Tefila sought relief under sections 1981 
and 1982. Presumably because their section 1981 claim was dis­
missed on alternative grounds, including the one at issue here, 
petitioners in Shaare Tefila sought review only of the lower courts’ 
disposition of their section 1982 claim. Recognizing the congruence 
of the statutory language, legislative history, and decided cases for 
purposes of resolving the question presented, this brief does not 
distinguish between the two sections. Sections 1981 and 1982 both 
originated in section 1 of the Civil Rights Act of 1866. Where, as 
here, the relevant language is the same in both statutes, there is 
“no reason to construe these sections differently.” Tillman v. 
Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 440 (1973) ; ac­
cord, Runyon v. McCrary, 427 U.S. 160, 171 (1976).



7

establish his membership in a distinct “non-white race” 
in order to invoke the Act. As the discussion below con­
firms, the language of the statute contains no such 
restriction, and instead was intended to protect all victims 
of discriminatory conduct of a racial or racist character; 
Congress clearly anticipated that such conduct would be 
actionable when directed at members of a wide array of 
minority or ethnic groups.

A. The Racial Character of the Discrimination Rather 
Than the Racial Status of the Plaintiff is the Focus 
of the Statute.

This Court’s inquiry in the first instance should focus 
on the language of the statute. In sweeping terms, the 
Act’s protections are afforded to “all persons.”  There 
are no words specifically limiting the class of intended 
beneficiaries to members of certain races, “white” or 
“non-white.”  Indeed, the word “race” does not appear 
in the statute as presently codified.

Despite the apparent breadth of the Act, the Fourth 
Circuit panel below affirmed the dismissal of petitioners’ 
claims because Jews are not members of a “racially 
distinct group” that is “commonly considered to be non­
white [] .” Shaare Tefila, Pet. App. A, at 7a. The un­
articulated rationale must have been that because Jews 
are “white,” they cannot suffer discrimination cognizable 
under the statute at the hands of other whites. As the 
majority and concurring opinions of the Third Circuit 
panel in Saint Francis College demonstrate, the statute 
and this Court’s prior constructions of the statute will 
not allow such a limited reading. Pet. App. at 23a-24a; 
id. at 31a-32a (Adams, J., concurring).

In McDonald v. Santa Fe Trail Transportation Co., 
427 U.S. 273 (1976), the Court considered whether white 
persons alleging that they had suffered discrimination 
resulting from favoritism to blacks could invoke the



8

statute. Construing the same statutory language— “ all 
persons” entitled to the same rights “enjoyed by white 
citizens”— the Court squarely held that one need not be 
“non-white” to state a claim under the statute. Id. at 
287.

The Court in McDonald emphasized that “ the statute 
explicity applies to ‘all persons’ (emphasis added), in­
cluding white persons.” Id. (emphasis and parenthetical 
in original). The statute’s qualifying phrase— “ as is 
enjoyed by white citizens”— was designed not to limit 
the statute’s applicability to non-whites, but rather “ to 
emphasize the racial character of the rights being pro­
tected.”  Id. (quoting Georgia v. Rachel, 384 U.S. 780, 
791 (1966)). Rachel, upon which the Court relied in 
McDonald, and its companion case, City of Greenwood v. 
Peacock, 384 U.S. 808 (1966), decided under the re­
moval provisions of the 1866 Civil Rights Act, involved 
state criminal prosecutions of groups of civil rights 
workers. As in McDonald, the Court considered the na­
ture of the conduct, not the race of the person alleging 
discrimination, in determining the availability of the fed­
eral remedy. Rachel, 384 U.S. at 791, 805.

This Court adopted precisely the same construction—  
one stressing the character of the rights being protected, 
rather than the “race” of the plaintiff— in Jones v. 
Alfred H. Mayer Co., 392 U.S. 409 (1968), where the 
Court pointed out that “all racially motivated depriva­
tions of the rights enumerated in the statute” are 
covered. Id. at 426 (emphasis in original). Indeed, once 
one accepts McDonald’s holding that whites and non­
whites alike can invoke the statute, racial status should 
become largely irrelevant; racial motivation and char­
acter should become the central issues. This conclusion is 
also supported by the consistent line of cases permitting 
a white associating with a black to seek relief under the 
statute for discriminatory conduct motivated by that as­
sociation. See Tillman v. Wheaton-Haven Recreation



9

Ass’n, 410 U.S. 431, 434 (1973); Sullivan v. Little Hunt­
ing Park, Inc., 396 U.S. 229, 237 (1969); Woods-Drake 
V. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982). In such 
cases, the plaintiff’s claim is based not on his or her 
racial status, but on the racial character of the rights 
protected.

The panel in Shaare Tefila disregarded the holdings of 
this Court and refused to consider the racial character of 
the conduct and rights involved. Instead, looking solely 
at the “race”  of the plaintiffs, it held that since Jews 
are not “non-whites,”  no cause of action possibly could be 
stated. But given the uncontradicted admissions that the 
defendants in Shaare Tefila acted upon a belief that their 
Jewish victims belonged to a distinct and inferior non­
white race,2 a cause of action premised on the established 
racial character of defendants’ conduct was stated under 
this Court’s holding in McDonald.3 As the panel in Saint 
Francis College recognized, the statute does not require 
a plaintiff to prove his “racial pedigree,” but rather to 
allege that his membership in a distinct group has sub­
jected him to “racially-based” prejudice. Pet. App. at 
26a. This Court should reverse the Fourth Circuit’s de­
cision and reaffirm that neither the statute nor this 
Court’s prior decisions require a section 1981 or 1982 
plaintiff to establish membership in a distinct “non­
white” race.

2 See Shaare Tefila, Pet. App. A, at 12a-13a (Wilkinson, J., dis­
senting) ; Brief for Appellees at 5, Shaare Tefila V. Cobb (4th Cir. 
1986).

3 The “racial character” of alleged discrimination may be pleaded 
in a variety of ways, and could include allegations of racial ani­
mosity on the part of the defendants, plaintiff’s membership in a 
group perceived to constitute a “race” or that is typically subject 
to prejudice with racial overtones, or by other assertions that sug­
gest racial or racist conduct. The types of allegations that would 
satisfy a “racial character” requirement are explored more fully in 
Part III, infra.



10

B. The Statute Was Intended to be Construed Broadly 
and to Protect Minority and Ethnic Group Members 
Regardless of Whether They Belong to Distinct 
Non-White Races.

This Court has repeatedly emphasized that the Civil 
Rights Act of 1866 should be generously applied and it 
has insisted that “ ‘ingenious analytical instruments’ . . . 
[not be employed] to carve . . . exception [s]”  from the 
statute. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437 
(1968) (quoting United States v. Price, 383 U.S. 787, 
801 (1966)).4 The McDonald Court rejected such an 
“ analytical instrument” when it determined to empha­
size the “ racial character” of the rights and conduct in­
volved, rather than the racial status of the plaintiff. In 
giving content to this concept of “racial character” and 
determining the rights Congress intended to protect un­
der sections 1981 and 1982, the Act should be construed 
broadly. The propriety of such a broad construction is 
clearly justified by the legislative history of the statute, 
which demonstrates that the concept of “race”  as under­
stood and used by the 39th Congress was meant to 
encompass a far broader range of groups than just the 
“ non-whites” protected by the Fourth Circuit below.

Introducing the Civil Rights Act of 1866, Senator 
Trumbull described the bill as intended “ to protect all 
persons in the United States in their civil rights” and 
emphasized that it applied to “every race and color.”  
Cong. Globe, 39th Cong., 1st Sess. 211 (1866). Repre­
sentative Wilson, Chairman of the House Judiciary Com­
mittee and the bill’s floor manager in the House, stressed 
that the measure would “protect our citizens, from the

4 See City of Memphis v. Greene, 451 U.S. 100, 120 (1981) 
(statute’s language to be “broadly construed” ) ; Sullivan v. Little 
Hunting Park, Inc., 396 U.S. 229, 237 (1969) ( “narrow construc­
tion of the language . . . would be quite inconsistent with the 
broad and sweeping nature of the protection meant to be af­
forded” ) .



11

highest to the lowest, from the whitest to the blackest, in 
the enjoyment of the great fundamental rights which 
belong to all men.” Id. at 1118.

While there can be no doubt that the Act was intended 
primarily to protect the rights of blacks, it is likewise 
clear that Congress did not intend to limit “race” by a 
color-based definition. In overriding President Johnson’s 
veto of the Act, Congress reaffirmed that:

“This bill, in that broad and comprehensive philan­
thropy which regards all men in their civil rights as 
equal before the law, is not made for any class or 
creed, or race or color, but in the great future that 
awaits us will, if it become a law, protect every 
citizen, including the millions of people of foreign 
birth who will flock to our shores to become citizens 
and to find here a land of liberty and law.”

Id. at 1833 (emphasis supplied). As this passage demon­
strates, sections 1981 and 1982 were never intended by 
Congress to apply solely to non-whites, but rather, as the 
statute provides, to “all persons.”  5

The term “ race,”  as used in the debates, was meant 
to be given a broad meaning so that it would encompass 
every “class or creed, or race or color.”  Id. This broad 
meaning is evident in Representative Shallabarger’s state­
ment:

5 In an extended analysis of the statute’s legislative history, this 
Court observed in McDonald that the Act “was routinely viewed, by 
its opponents and supporters alike, as applying to the civil rights 
of whites as well as non-whites.” 427 U.S. at 289. After examining 
the background of the statute’s enactment, one district court re­
cently concluded that “the legislative history indicates that (per­
haps except for distinctions based on gender and age) Congress 
intended to ensure that all citizens were to enjoy the same civil 
rights.” Ortiz v. Bank of America, 547 F. Supp. 550, 555 (E.D. 
Cal. 1982) ; see also Note, National Origin Discrimination Under 
Section 1981, 51 F ordham L. Rev. 919, 934 & n.104 (1983) (indi­
cating that Congress intended gender and age to be the only limi­
tations on the statute’s scope).



12

“Who will say that Ohio can pass a law enacting 
that no man of the German race, and whom the 
United States has made a citizen of the United 
States, shall ever own any property in Ohio . . . .  
If Ohio may pass such a law, and exclude a German 
citizen . . . because he is of the German nationality 
or race, then . . . you have the spectacle of an Ameri­
can citizen admitted to all its high privileges and en­
titled to the protection of his Government . . . and 
yet that citizen is not entitled to either contract, 
inherit, own property, work, or live upon a single 
spot of the Republic, nor to breathe its air.”

Id. at 1294; see also id. at 1757 (noting President John­
son’s objection that the bill would make citizens of 
“ Chinese and Gypsies” ).

The legislative history of the statute, including the 
generalized comments in that history about members of 
different “races,” must also be read in light of the com­
mon understanding of the term “race” at the time.8 A 
leading contemporary dictionary defined “race”  as fol­
lows: “A race is the series of descendants indefinitely. 
Thus all mankind are called the race of Adam; the Is­
raelites are of the race of Abraham and Jacob.”  N. 
Webster, An American Dictionary of the English Lan­
guage 903 (C. Goodrich rev. Springfield, Mass. 1860)
(emphasis in original). This sweeping contemporaneous 
understanding of “race” confirms that all types of groups 
were intended to benefit from the Act.

This Court should embrace that common and broad 
understanding of “race,” not only because it conforms to 
the legislative history context, but because it is the cor­
rect and traditional method of interpreting the statute. 
In addressing the meaning of racial terminology, this 
Court has previously noted: 6

6 At least one of the opponents of the Act noted during floor 
debate the imprecise and potentially boundless meaning of “race.” 
See Greenfield & Kates, Mexican Americans, Racial Discrimination, 
and the Civil Rights Act of 1866 , 63 Cal . L. Rev. 662, 672 (1975).



13

“ It is in the popular sense of the word, therefore, that 
we employ it as an aid to the construction of the 
statute, for it would be obviously illogical to convert 
words of common speech used in a statute into words 
of scientific terminology when neither the latter nor 
the science for whose purposes they were coined was 
within the contemplation of the framers of the stat­
ute or of the people for whom it was framed. The 
words of the statute are to be interpreted in ac­
cordance with the understanding of the common man 
from whose vocabulary they were taken.”

United States v. Bhagat Singh Thind, 261 U.S. 204, 208 
(1923) ; see also Morrison v. California, 291 U.S. 82, 85- 
86 (1934). Against this background, the legislative his­
tory demonstrates that any “scientific” limitation of the 
Act to distinct “non-white races” would be ill-founded.

The Civil Rights Act of 1866 was adopted against the 
background of sectional conflict by men who had seen the 
Nation’s future threatened by issues of race and status. 
They were determined that, henceforth, “all persons” 
would be relieved of disabilities and harm by reason of 
any involuntary status attributed to ancestry, physiog­
nomy, or ethnicity. Knowing well the dangers of group 
antagonism, they sought safety for the Nation by declar­
ing that no American could be treated as an alien sub­
ject to intimidation, suppression, or expulsion from the 
civic community. The Civil Rights Act of 1866 must be 
read to have a reach as broad as this purpose.

II. Federal Remedies for Racially-Discriminatory Conduct 
Should Not be Limited by Narrow and Arbitrary Defi­
nitions of “Race.”

The Fourth Circuit panel below— despite the uncon­
tradicted evidence of the racist character of the syna­
gogue desecration— dismissed petitioners’ claims because 
Jews do not belong to a distinct “non-white” race. Shaare 
Tefila, Pet. App. A, at 7a. The panel determined that 
the defendants’ belief that Jews are members of a



14

separate and inferior “race” was unfounded and hence 
held that their conduct could not be actionable as racial 
discrimination. In essence, the lower court purported to 
“excuse” defendants’ admitted racism because defend­
ants’ racist conduct lacked a sound scientific basis. Such 
a narrow interpretation of the statute’s scope both ig­
nores the true character of racism and illustrates the 
inappropriateness of restrictive judicial definitions of 
race.7

Judge Seth, in considering the applicability of the stat­
ute to minority groups, aptly observed that racists are 
“poor anthropologists” and that racial “ [prejudice 
is based on all the mistaken concepts of ‘race.’ ” Manza- 
nares v. Safeway Stores, Inc., 593 F.2d 968, 971 (10th 
Cir. 1979) ; see also Shaare Tefila, Pet. App. A, at 11a 
(Wilkinson, J., dissenting); S. Washburn, The Study of 
Race, in The Concept of Race 243, 254 (A. Montagu ed. 
1964). This connection between misbegotten notions of 
race and racial prejudice is a commonplace. But such 
misbegotten notions must not be ignored if the statute is 
to apply to “all racially motivated deprivations of . . . 
rights,” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426 
(1968) (emphasis in original).

On the theory that defendants’ “ subjective, irrational 
perceptions” that Jews are a race should not be con­
trolling, the Fourth Circuit panel below refused to permit 
the plaintiffs to invoke the statute. Shaare Tefila, Pet. 
App. A, at 7a. This holding not only clashes with this 
Court’s recognition that the statute applies to “all racially 
motivated” conduct; it also ignores the fact that anti- 
Semitism has long been the product of such racial mis­
perceptions. The racist motivations of defendants in

7 The amici reject the notion that Arabs or Jews should be 
classified as members of a distinct “race,” but, as made clear 
throughout this brief, submit that the statute must be construed 
to cover acts of racism against Arabs and Jews.



15

Shaare Tefila are similar to the motivations that have 
animated anti-Semitic conduct for centuries.

A recent study of the character of anti-Semitism 
observed that:

“ In medieval times hostility to the Jew, whatever 
its underlying social or psychological motivations, 
was defined primarily in religious terms. From the 
fifteenth century onward this was no longer true, 
and Jew hatred was redefined, becoming at first 
partly, and then, at least in theory, wholly racial.”

B. Lewis, Semites and Anti-Semites 81 (1986). The pre­
dominantly racist content of anti-Semitism, from at least 
the time of the Spanish Inquisition through Nazi Ger­
many to present-day America, is a matter of historical 
record. See id. at 26-33, 81-100; T. Gossett, Race: The 
History of an Idea in America 9-12, 292-93, 371-72, 449 
(1963) ; see also Shaare Tefila, Pet. App. A, at 16a-17a 
(Wilkinson, J., dissenting) ; Ortiz v. Bank of America, 
547 F. Supp. 550, 567 (E.D. Cal. 1982). Six million 
Jews were not murdered in the holocaust as a result of 
differences in religious doctrine; they were the victims of 
a twisted and avowedly racist Nazi ideology that meas­
ured Jewishness by blood rather than belief. Hence, ap­
plication of the statute to Jews would not require a court 
to indulge the isolated racist idiosyncracies of individual 
defendants. The history of anti-Semitism amply, if not 
tragically, demonstrates its pervasive racist character.

Similarly, discrimination against Arabs has long as­
sumed a decidedly racist cast. Arabs include natives of 
Near Eastern countries such as Syria, Egypt, Yemen, 
Lebanon, Iraq, and Saudi Arabia, and their descendants. 
Though Arabs are taxonomically classified as Caucasian, 
they often (though certainly not invariably) have a skin 
color darker than that of Caucasians of European descent. 
Bigots have seized upon Arabs’ supposedly distinctive 
physical and ethnic qualities in stereotyping and dis­
criminating against them. Examples of explicitly racist



16

anti-Arab epithets and conduct have surfaced with dis­
maying frequency in recent years.8

An obvious irony of the consolidation of these cases is 
that both Jews and Arabs fall within the crude rubric 
“ Semite,” which technically is a language classification, 
though it also has long had racial connotations. See G. 
Barton, A Sketch of Semitic Origins 28 (1902) ; B. 
Lewis, Semites and Anti-Semites 44-45, 50 (1986).9 
Racists, among others, have lumped Arab and Jew to­
gether as targets of discrimination. For example, a re­
strictive land covenant successfully challenged in the 
early 1970’s forbade transfer “  ‘to any person of the 
Semitic race, blood or origin, which racial description 
shall be deemed to include Armenians, Jews, Hebrews, 
Persians and Syrians. . . ” Mayers v. Ridley, 465 F.2d
630, 631 n.2 (D.C. Cir. 1972) (emphasis supplied). It is 
clear that bigots have historically treated Jews and 
Arabs— sometimes separately, sometimes together—as 
racially distinct from the “white”  majority.

The test of the Fourth Circuit, which requires proof 
of actual membership in a separate “ non-white” race, 
ignores the fact that discrimination against Caucasian 
sub-groups such as Arabs and Jews frequently assumes 
an undeniably racist quality. Racially-motivated discrim­
ination against Arabs and Jews is no different in kind 
or character from the bigotry directed at taxonomically-

8 See, e.g., Dickey, Falling Out of Love with the Arabs, News­
week , Aug. 25, 1986, at 44 (describing a recent “surge of anti- 
Arab jingoism [and] increasing bigoted talk about ‘camel jockeys’ 
and ‘sand niggers’ ” ) ;  Newell, Arab-Bashing in America, News­
week, Jan. 20, 1986, at 21.

9 See also J. Worcester, A Universal and Critical Dictionary of 
the English Language 656 (Boston, Mass. 1874) (defining “She- 
mitic” as relating to various languages, including Arabic and 
Hebrew; defining “ Shemitism” as “ [t]he Shemitic race” ) . The 
term “Shemite” preceded that of “ Semite,” and is traceable to 
Shem, one of Noah’s sons and the mythological forebear of the 
Shemites.



17

defined racial minorities. Adoption of a scientific “ race 
test” would thus deny real victims of racist conduct an 
important remedy.10

Even if a “ race test” arguably were appropriate for 
determining eligibility to invoke the Act, a restrictive, 
pseudo-scientific, color-based “race test”  would be both 
improper and unseemly. In interpreting “ race” for pur­
poses of this civil rights law, even if the contemporary 
definition of race were not as broad as that at issue here, 
the correct approach would be to define the term and the 
statute as broadly as necessary to cover acts that are 
racial or racist in character. Both lay and scientific 
meanings admit to such sweeping applications.

It is commonly acknowledged that there is no defini­
tional consensus in the scientific or academic community 
about “ race.” See generally A. Montagu (ed.), The Con­
cept of Race (1964) (collecting various scholarly essays 
on topic); see also United States v. Bhagat Singh Thind, 
261 U.S. 204, 212 (1923); J. Barzun, Race: A Study in 
Superstition 203-07 (1965). Indeed, to the extent that 
there is agreement, it is on the proposition that the 
purpose of any racial classification dictates its scope and 
content. See Ortiz v. Bank of America, 547 F. Supp. 550, 
565-67 (E.D. Cal. 1982); S. Molnar, Races, Types, and 
Ethnic Groups 13 (1975). In the lay community, “ race” 
remains an extraordinarily open-ended concept; it is de­
fined as broadly in today’s leading dictionaries as it was 
over 100 years ago, when the Civil Rights Act was 
passed.11

10 “Since the evil at which the statutes are aimed is discrimina­
tion, the scientific validity of the discriminator’s racial definition 
is irrelevant.” Greenfield & Kates, Mexican Americans, Racial Dis­
crimination, and the Civil Rights Act of 1866, 63 Cal . L. Rev. 662, 
678 (1975). In enforcing a statute designed to remedy racist con­
duct, the defendants’ racist misperceptions must be considered, 
even if they are irrational and confused.

11 Compare Webster’s Third New International Dictionary 1870 
(1981) (“descendants of a common ancestor” or “a class or kind of



18

Despite the fact that Arabs and Jews should not be 
classified as scientifically distinct “ races,” it is nonethe­
less true that each group has been considered to consti­
tute a “ race.” The mistaken belief that Jews belong to 
a separate “ race” is not only held by anti-Semites; many 
with benign attitudes towards Jews have referred to 
them as a “race.” See A. Montagu, Man’s Most Dan­
gerous Myth: The Fallacy of Race 353 (5th ed. 1974).12 
In fact, a standard dictionary in America still illustrates 
its definitions of “race” with unfortunate references to 
the “ Hebrew race” and the “Jewish race.” Webster’s 
Third New International Dictionary 1870 (1981). Cf. 
N. Webster, An American Dictionary of the English 
Language 903 (C. Goodrich rev. Springfield, Mass. 1860) 
(“ the Israelites are of the race of Abraham and Jacob” )
(emphasis in original).

Arabs are also popularly thought of as a separate 
“ race.” In terms that today would be regarded as racist,

individuals with common characteristics, interests, appearance, or 
habits” ) with N. Webster, An American Dictionary of the English 
Language 903 (C. Goodrich rev. Springfield, Mass. 1860) (“the 
series of descendants indefinitely” ).

12 See, e.g., Hirabayashi v. United, States, 320 U.S. 81, 111 
(1943) (Murphy, J., concurring) (wartime treatment of Japanese 
Americans “bears a melancholy resemblance to the treatment ac­
corded to members of the Jewish race in Germany and in other 
parts of Europe.” ) ; Near v. Minnesota, 283 U.S. 697, 703 (1931) 
(Hughes, C.J.) (“Jewish Race” ) ;  I. Berlin, Against the Current: 
Essays in the History of Ideas 274-75 (1980) (describing Dis­
raeli’s theory of the “Jewish race” ) ; G. Eliot, Daniel Deronda 
(1876) (sympathetic 19th Century fictional treatment of Jews 
laced with references to the “Jewish race” ) ; Letter from Learned 
Hand to Charles H. Grandgent (Nov. 14, 1922) (urging that Har­
vard College not impose a “limitation based upon race” to restrict 
admission of Jews), reprinted in L. Hand, The Spirit of Liberty 21 
(3d ed. 1974) ; The Sun (New York), Sept. 19, 1870, at 2, cols. 2-3 
(“ The Jews are not merely a church; they are a race. . . . The Jewish 
race is one of the most tenacious and strongly marked in all the 
history of man.” ), reprinted in M. Schappes (ed.), A Documentary 
History of the Jews in the United States 541 (3d ed. 1971).



19

a district court opinion dating back several decades 
soberly analyzed the group characteristics of Arabs and 
concluded that “as a class they are not white” and would 
not have been considered “white” by the Congress that 
enacted this country’s first naturalization statute in 1790. 
In re Hassan, 48 F. Supp. 843, 845-46 (E.D. Mich. 
1942). But see Ex parte Mohriez, 54 F. Supp. 941 (D. 
Mass. 1944). The notion that Arabs constitute a distinct 
race is not a new or novel one. See R. Benedict, Race 
and Racism 13 (1942) (describing different groupings of 
the Arab race).

While most racial labelling is misguided, the reality 
is that Arabs, Jews, and many other ethnic or minority 
groups have been widely, though erroneously, regarded 
as belonging to “ races.” Such beliefs merely reflect the 
way “ race” has been understood from at least the 19th 
Century to this day in popular and even academic par­
lance. In the face of such open-ended understandings of 
“ race” and the express purpose of the statute to remedy 
all racially-motivated acts of discrimination, a construc­
tion of the statute that seeks to limit its coverage to 
scientifically-verifiable “non-white races” is a misguided 
enterprise. Moreover, such an abstract and restrictive 
reading of the statute would leave countless victims of 
discrimination plainly racist in character without any 
effective remedy. The correct result is to apply the stat­
ute to all victims of racially-motivated discrimination 
and to avoid formulation of a technical “ race test.”

A restrictive reading of the statute— one which ig­
nores the racial motivations of defendants and the 
broader understandings of “ race” prevalent at the time 
of the Act or in some modem lay usage— would require 
the federal courts to devise such a “ scientific” definition 
of “race” and to assume the role of arbiter of racial clas­
sifications. It could result in unseemly judicial inquiries 
into the racial background of litigants and the formula-



20

tion of artificial and technical racial distinctions.13 * The 
breadth of the statute, however, renders such a defini­
tional role unnecessary because of its sweeping prohibi­
tion of all racially-motivated discrimination. This Court 
therefore should reject the color-based, “ scientific” test of 
the Fourth Circuit panel below and make it clear that a 
plaintiff need not “prove his [racial] pedigree,”  Saint 
Francis College, Pet. App. at 26a, before he is permitted 
to invoke a statute that by its terms protects “ all 
persons.”

III. Section 1981 and 1982 Plaintiffs Should be Permitted to 
Proceed With Their Claims Unless Their Allegations 
Are Clearly Inconsistent With the Possibility That 
They Were the Victims of Racial Discrimination.

The central flaw of the Fourth Circuit’s decision in 
Shaare Tefila is that it dismissed the Congregation’s 
claim in the teeth of allegations of conduct that was un­
mistakably racial or racist in character. The defendants 
conceded that they believed Jews to constitute a separate 
and inferior non-white race. They desecrated plaintiffs’ 
synagogue with anti-Semitic emblems redolent of racially- 
inspired Jew hatred. Moreover, Jews, though members 
of a religion, for centuries and to this day commonly 
have been thought of, albeit mistakenly, as a separate 
“race.”

The correct rule of law at the pleading stage should be 
that  ̂allegations which, if proven, would establish dis­
crimination that is racial in character are adequate to 
state a cause of action. In light of the purpose of the

13 See Note, Legal Definition of Race, 3 Race Rel. L. Rep. 571
(1958) (reviewing- statutory definitions of racial groups and judi­
cial interpretations thereof, particularly as applied in the mis­
cegenation context) ; compare United States v. Bhagat Singh Thind, 
261 U.S. 204, 209-15 (1923) (high caste Hindu not a “free white 
person” for naturalization purposes) with In re Mohan Singh, 257 
F. 209 (S.D. Cal. 1919) (reaching opposite result apparently under­
mined by the Thind case).



21

statute to combat racial discrimination in its various 
forms and the open-ended and imprecise meanings of 
“race” since 1866, it would be improper to screen poten­
tial plaintiffs by requiring allegations of membership in 
a “non-white race.” The better approach would be to 
require only allegations of discrimination of a racial 
character.14

There are numerous factors—none of which is ex­
clusive— that the courts should consider in determining 
whether a plaintiff has adequately pleaded and can plaus­
ibly assert that he was the victim of racial discrimina­
tion, as opposed to discrimination on some other basis not 
prohibited by the statute. The factors to be considered 
should include the plaintiff’s allegations concerning the 
racial or racist motivations of the defendant. In addi­
tion, the court should weigh the plaintiff’s allegations 
regarding his own race or skin color. Equally important 
factors are the extent to which the plaintiff belongs to 
an identifiable group that is commonly or historically re­
garded by bigots or lay persons as constituting a “ race,” 
as the term is understood in a broad sense. Unless the 
plaintiff’s allegations are inconsistent with the notion 
that he or she has suffered discrimination that is racial 
or racist in character, a cause of action has been stated 
and the plaintiff should be entitled to prove his or her 
claim.15

14 Because the Arab and Jewish plaintiffs in these cases allege 
racial discrimination, the Court need not determine the extent to 
which the statute protects individuals claiming discrimination 
solely on the basis of national origin, cf. Delaware State College v. 
Ricks, 449 U.S. 250, 256 n. 6 (1980) (reserving question), or some 
other criterion.

15 Numerous courts and commentators endorse an approach that 
goes beyond) the “scientific” racial status of the plaintiff and in­
cludes inquiry into one or more additional factors, such as those 
described above, that are relevant to the racial character of dis­
criminatory conduct. See Alizadeh v. Safeway Stores, Inc., 802 F.2d 
111, 114-15 (5th Cir. 1986); Saint Francis College, Ret. App. at



22

The test proposed is flexible and directs the court’s 
attention to any and all factors relevant to the existence 
of racial discrimination. It recognizes that the racial 
status of the victim is not the only measure of racism. 
This test would also relieve the courts of the impossible 
and unseemly task of analyzing in a pseudo-scientific 
fashion the “races”  of litigants. In short, it would ac­
knowledge the true nature of racism and afford the 
statute’s protection to all victims of racial discrimina­
tion. By any measure, the Arab and Jewish plaintiffs in 
these cases have pleaded discrimination that is racial in 
character.

CONCLUSION

For the foregoing reasons, the amici urge this Court 
to reverse the decision of the Fourth Circuit below, to 
affirm the ruling of the Third Circuit below, and to’ re­
solve these cases in a manner making clear that the Civil 
Rights Act of 1866 is available to all Arab and Jewish 
victims of racial discrimination.

25a-27a; Erebia v. Chrysler Plastic Prod. Corp., 772 F.2d 1250, 
1253-54 (6th Cir. 1985), cert, denied, 106 S. Ct. 1197 (1986); 
Ramos v. Flagship International, Inc., 612 F. Supp. 148, 151 
(E.D.N.Y. 1985); Greenfield & Kates, Mexican Americans, Racial 

Discrimination, and the Civil Rights Act of 1866, 63 Cal. L. Rev. 
662 (1975). Other authorities maintain that there is no “racial” 
requirement and that virtually any victim of group-based: discrimi­
nation may invoke the Act. See Manzanares v. Safeway Stores, 
Inc., 593 F.2d 968, 971-72 (10th Cir. 1979); Ortiz v. Bank of 
America, 547 F. Supp. 550, 568 (E.D. Cal. 1982); Note, National 
Origin Discrimination Under Section 1981, 51 F ordham L. Rev. 
919, 939, 942 (1983).



23

Of Counsel:
Michael Schultz 
Meyer E isenberg 
David Brody 
Edward N. Leavy 
Steven M. Freeman 
Jill L. Kahn  

A nti-Defamation League 
of B ’nai B ’rith 

823 United Nations Plaza 
New York, New York 10017 
(212) 490-2525 

and
1640 Rhode Island Ave., N.W. 
Washington, D.C. 20036 
(202) 857-6660

Menachem Z. Rosensaft 
International Network 

of Children of Jewish 
Holocaust Survivors 

425 Park Avenue 
New York, New York 10022 
(212) 407-8000

Robert S. R ifkind 
Samuel Rabinove 
Richard T. Foltin 

A merican Jewish Committee 
165 East 56th Street 
New York, New York 10002 
(212) 751-4000

E ileen Kaufman 
Institute of 

Jewish Law  
300 Nassau Road 
Huntington, New York 11743 
(516) 421-2244

November 1986

Respectfully submitted,

Gregg H. Levy *
Mitchell F. Dolin 

Covington & Burling 
1201 Pennsylvania Ave., N.W. 
Post Office Box 7566 
Washington, D.C. 20044 
(202) 662-6000 

Counsel for Amici Curiae

Harold R. Tyler 
James Robertson 
Norman Redlich 
W illiam L. Robinson 
Judith A. W inston 

Lawyers’ Committee for 
Civil Rights Under Law  

1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

Rachael P ine 
A merican Civil Liberties 

Union Foundation 
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Joseph A. Morris 
Capital Legal Council 

of B’nai B’rith 
5500 Friendship Boulevard 
Chevy Chase, Maryland 20815

Grover G. Hankins 
Joyce H. Knox 

National A ssociation 
for the Advancement of 
Colored People 

4805 Mount Hope Drive 
Baltimore, Maryland 21215 
(301) 358-8900

* Counsel of Record