Saint Francis College v Al-Khazraji Brief for Respondent
Public Court Documents
October 1, 1986
198 pages
Cite this item
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Brief Collection, LDF Court Filings. Saint Francis College v Al-Khazraji Brief for Respondent, 1986. 270e8473-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e9d084ee-73bd-4494-b03d-7d880a338d49/saint-francis-college-v-al-khazraji-brief-for-respondent. Accessed April 27, 2025.
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No. 85-2169
I k t h e
( t a r t nf tip? I t t t t r f c # t a t r s
October T erm , 1986
S aint F rancis C ollege, et a l,
v.
Petitioners,
MA.ru* (xhaidah A l -K h aeraji, a/ k/ a
M a jid A l-K hazbaji: A llan ,
Respondent.
ON W RIT OF CERTIORARI TO TH E UNTIED STATES
COURT OF APPEARS FOR TH E THIRD CIRCUIT
BRIEF FOR RESPONDENT
C aroline M itch ell*
1705 Allegheny Building
42.9 Forbes Avenue
Pittsburgh, PA 15219
(412) 232-3131
J u liu s L eV onne C hambers
E ric S chnapper
99 Hudson Street
16th Floor
Hew 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
Steel Co., 777 F.2d 113 (3d Cir. 1985)?
i
TABLE of contents
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
' 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
Page
ii
Page
E. The Difficulties In
herent in Petitioners'
Proposed Construction
of Section 1 9 8 1 . 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" .............. 36a
Appendix I: Definitions of
"Progeny" .............. 39a
Appendix J: Definitions of"House" ................. 4ia
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
Beacon Theatres v. Westover,
359 U.S. 500 (1959) ...
Page
U.S. 97 (1971) ...... 107,109,112-13
43
Chevron Oil Co. v. Huson, 404
Davis v. United States Steel
Supply, 581 F.2d 333 (3d.
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
Farmer 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
(I960) 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
Pacre
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) 82
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) 30,102
Mozumdar v. United States,
229 F.240 (9th Cir. 1924) ... 31
Mulligan v. Hazard, 54 U.S.L.W.
3808 (1986) 105
Naraine v. Western Electric
Co., 507 F.2d 590 (8th
Cir. 1974)..... 103
Near v. Minnesota, 283 U.S.
697 (1931) 69
Oyama v. California, 332 U.S.
633 (1948) .................. 47
Plessy v.Ferguson, 163 U.S. 537
(1896) 99
Procunier v. Navarette, 434
U.S. 555 (1978) 113
Quock Ting v. United States,
140 U.S. 417 (1891) 70
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
Pacre
Civil Rights Act of 1866 ........ Passim
Civil Rights Act of 1964,
Title VII ...........5,41-43,120,128
1 Stat. 103 ...................... 23
14 Stat. 27 ..................... 36
16 Stat. 256 .................... 23
39 Stat. 876 .................... 22
39 Stat. 877..................... 22
43 Stat. 159 .................... 22
66 Stat. 239 .................... 33
Seventh Amendment ................ 43
Fourteenth Amendment........8,9,45-49,70
Legislative Materials:
Cong. Globe, 39th Cong.,
1st Sess. (1866) .....10,37,49,74-87
Cong. Globe, 34th Cong.,
1st Sess. (1856) ........... 81
53 Cong. Rec. (1916) ............ 21,34
Sen. Doc. No. 662, 61st Cong.,
3d Sess. (1911) 20
xiv
Sen. Doc. No. 747, 61st Cong.,
1st Sess. (1911) ........... 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
Chambers' 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
Page
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. 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 .1, no.4, (October, 1943) .. 33
Brief in Opposition, No. 406,
October Term, 1953 ......... 3 6
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
XX
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 "docket"
any complaint. Prior to 198 0 it was
PHRC's 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), rev1d . 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
Halladiian. 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 naturalization 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 18 66 "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"
presents insurmountable practical
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.1 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 1
12 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 19 04 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 Halladiian. 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, re ferred
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(...continued)
465 (D.Mass. 1910) (Syrian Arab);
Ellis, 179 F. 1002 (D.Ore. 1910) (SyrianIn re
Arab)} In re Shahid, 205 F. 812 (E.D.S.C.
1913) (Syrian Arab); In re Mozumdarr 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);
IB— £§— 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 362.
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 362.
The Syrian petitioner in Dov 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
government1s 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 Statesr 226 F. 145 (4th Cir. 1910).
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
3 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
petitioners' 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;^-9 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
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. Ouiacr. 155
Mont. 119, 147, 467 P.2d 692 (1970);
Herrera v. People. 87 Colo. 360, 361, 287
P.2d 643 (1930); Flores v. . McCov. 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 1866
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. Maver m . r
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. Wona 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 anopen question.
40
emigrated to the United States. Although
an individual's 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 petitioners'
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.2 6 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
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 Etvmolocrv of the Word "Race"
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.
Maillard 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
3Worcester (1846), p. 656.
32Id., p. 585; Smallev (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 individual's 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.
36 Clark (1855), p. 255 (nation
^efined 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.l, 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 . 2, p .
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. 1 6 6 ; v . 4 , p. 6 3 8 ; v . 6 ,
p. 3 8 2 ; V. 7 , pp. 3 3 5 - 3 7 , 6 5 5 ; v . 9 , p.
3 3 5 - 6 ; v . 1 3 , pp. 1 5 9 - 6 0 , 5 0 6 ; V . 1 4 , pp.
2 2 5 - 2 6 , 8 0 4 ; V . 1 5 , pp. 2 1 6 , 2 6 4 , 6 0 3 , 6 5 3 .
46V.2, p. 245 (emphasis added); see
also v.l, 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
4 9 v •1, pp. 2 3 6 , 5 6 4 ; V . 3 , p. 1 1 8 ;v. 7 , P- 8 4 ; V. 9 , p. 2 1 6 ; v. 1 0 , p. 4 7 3 ;v.ll, P- 8 3 ; V. 1 2 , p. 3 6 5 ; v .1 8 , p. 6 2 7 .
61
until the publication at the turn of the
century50 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."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, p. 4926 (emphasis in
original)
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 Webster's. 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. Ethnolroavl.
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); Weeklev (1921),
1190 (no such meaning); Universal (1932),
955 (ethnological term).
56 See, e.g.. 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 Wagnalls (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
58 Pp. 44, iB4, 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 Waonalls (1963) p. 1038
(German race); Webster1s (1985), p. 969
(continued...)
67
signaled most clearly in the differences
in the definitions found in Webster1s
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 articles1 concerning . . .
the Jewish race." 283 U.S. at 703. See
also Hirabavashi v. United States. 320
70
U.S. 81, 111 (1943) ("Jewish race"); Fong
Yue Tina 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.g. 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) ; Quock 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 Man's Most
Dangerous Mvth: 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 70 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."7 0 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).
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)
73Id. 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." 76 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.
76(.•.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 81
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."8-3-
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 I860, and the successful
Republican effort to win their ballots
was coordinated by Carl Schurz,86 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
so. 89
84
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.,
Sess., 1294 (emphasis added).
90Id. at 1833.
1st
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.1,92
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 92
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 "Caucasian"
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?'
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.cr. . 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 petitioners' 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, Plessy v. Ferguson. 163 U.S. 537,
542, 549 (1896); neither the majority nor
the dissent in Plessy 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
100
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.
101
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.
102
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.cr. . 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); 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);
Tayyari 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); Annoya 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 i
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
rule 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
(l) ghevron 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 ... decidfed] 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
i°6 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. Mevers 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
1:L1Davis v. United States Steel
Supply, 581 F.2d 335 (3d Cir. 1978) and
Meyers 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 Bloomsburq 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
122
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
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
Ridcrwav 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
128
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 FloorNew York, New York 10013
(212) 219-1900
Attorneys for Respondent
♦Counsel of Record
A P P E N D I X
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 Renort
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-7Lettish 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. 6Polish 1899, p. 6
Portugese 1899, p. 6
Roumanian 1899, p.7Russian 1899, P-7Ruthenian (Russniak)
Scandinavian
(Norwegians,
1899, P-7
Danes and Swedes) 1899, P-7Scotch 1899, P-7Servian 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 .7
1899, 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
80-84, 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.
Syrian)
60 38 (including Cuban,
Hebrew, Mexican,
Spanish, Spanish
American, and Syrian)
(similar tables at
pp. 62, 65, chart 11)
62 5 ("grand division of
race")1906 7 6 (assets of various
races, including
Hebrews)
Chart 2 34 (including Hebrew,
Syrian, Cuban,
Spanish, and Spanish
American)1908 166-67 38 (including Cuban,
Hebrew, Spanish and
Syrian)
176 33 (including Hebrew,
Mexican and Puerto
Rican)1909 19 39 (including Cuban,
Hebrew, Spanish,
Spanish-American, and
Syrian)1912 7-8 14 (including Hebrew
and Syrian)1913 12-14 11 (including Syrian,
Hebrew, and Arabian)1914 235 9 (including Hebrew
and Syrian)246 23 (including Hebrew
and Syrian)330 29 (including Hebrew,
Mexican, Spanish
American, and Cuban)1915 159 14 (including Hebrew,
Mexican, Spanish,
Spanish-American, and
6 a.
Syrian)1916 110 13 (includes Hebrew,
Mexican, Spanish, and
Syrian)1917 118 12 (including Hebrew,
Mexican, Spanish and
Syrian)
1919 46-50 15 (including
Syrians, a "subject
**.. race" of Turkey)
80 39 (including Cuban,
Hebrew, Mexican,
Spanish, Spanish-
American and Syrian)
1920 14 37 (including Cuban,
Hebrew, Mexican,
Spanish, Spanish-
American and Syrian)
1922 17 36 (including Hebrew,
Mexican, Spanish,
Spanish American and
Syrian)
132 11 (including Hebrew,
Spanish, and Syrian)
1923 198 11 (including Hebrew
and Syrian)
1924 146 9 (including Hebrew
and Syrian)
1929 6 9 ("principal"
immigrant races;
includes Hebrew and
Mexican)
1930 28 12 (including Hebrew
and Spanish)
1931 39 5 (including Mexican)
47 12 (including Hebrew,
Mexican and Spanish)
50 9 (including Hebrew,
Mexican and Spanish)
212 6 (including Spanish)
7 a.
1932 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.1,3-
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 Mall 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. Penning, 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."
Bailey (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..."Webster's (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-Day (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 Waonalls (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)."
Webster1s (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
26 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.M
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 . 480Webster (1845), p . 219Webster's (1875), p. 241Webster's (1876), P. 410Webster's (1936) , P- 555Webster's (1956), P- 1366Webster'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."
Boacr (1847) , p. 760
28 a.
"A man of the same race or family; orrelated 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 withanother."
Chambers (1872), p. 451
"A man of the same race or family."
Stormonth (1874), p. 308
"A man of the same kin or race withanother."
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."
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."
Boag (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 "Family11
'•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 commonprogenitor; a tribe or race; kindred;lineage."
Boag (1847) p. 521
"Those who descend from one commonprogenitor;
lineage." a tribe or race; kindred;
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 & Wacnalls (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 & Waqnalls (1963) p.457
35 a.
APPENDIX H
Definitions of "Lineage"
Included are those definitions
utilizing the word race.
"Flock or race."
Martin (1754)
"A race, flock, pedigree."
Bellamy (1760)
"Race; progeny; family."
Johnson (1768)
Fennincr (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."Webster1s (1830) p.499
Webster's (1876) p.429
"Race; house; generation; progeny."
Worcester (1846) p.421
"Race; progeny; family; ascending or
36 a.
descending."
Bolles (1847) p .461
Craig (1849) p.81
"Race; progeny; descendants in a line
from a common progenitor."
Boag (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."
Every-Dav (1890) p. 117
" Descent in a line from a common
progenitor; race."Webster's (1895) p.332
37 a.
"Descendants in a line from a common
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."
Webster1s (1936) p. 582
"2. Family; race."Thorndike (1941) p.542
"2. The line of descendants of a
particular ancestor; family, race."
American Collecre (1953) p.702
"2. Family; race."Thorndike-Barnhart (1955) p.462
"Descent in a line from a common
progenitor; race; family."Webster1s (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 "Progeny"
"Offspring, issue, race."
Martin (1754)
"Offspring; race; generation."
Bellamy (1760)
Johnson (1768)
Sheridan (1790)
"An offspring or issue."
Bailev (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."Boacr (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."Webster's (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
Included are definitions utilizing
the word race. Definitions of "house" in
the sense in which it is used in the
phrase "House of Windsor."
Definitions of "House11
"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; lineage; 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 Wacmalls (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 "Gypsy"
"The Gipsvs 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
Boaq (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
"(lit.) 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."Webster1s (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.
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