Behind the Headlines New Life in 1987 for the Civil Rights Act of 1866

On May 18 the U.S. Supreme Court found unanimously in the companion cases of Saint Francis College v. Al-Khazraji and Shaare Tefila Congregation v. Cobb, that the protections of the Civil Rights Act of 1866 against racial discrimination allowed private federal lawsuits for claims of intentional discrimination based upon a person’s ancestry or ethnic characteristics.

In one of those ironies sometimes found in history, these cases, extending the protections of the Civil Rights Act to ethnic groups generally, involved claims of discrimination against, respectively, an Arab and a Jew.

In the Saint Francis College case, a university professor, a United States citizen born in Iraq, filed a federal suit against a university claiming that he had been denied tenure because of his Arabian ancestry.

The trial court held that Al-Khazraji had no claim under the Civil Rights Act of 1866, because its protections against racial discrimination did not reach discrimination claims based on Arabian ancestry.

The U.S. Court of Appeals for the Third Circuit reversed, however, holding that, although Arabs would be considered Caucasians under current racial classifications, Congress, when it passed the Act, did not limit its protections to those who would be considered members of a race different from the defendant’s. Rather, the Court of Appeals found that the Act allowed an individual to sue those who had discriminated against him or her because of membership in an ethnically and physiognomically distinctive subgrouping.

Shaare Tefila involved a lawsuit brought by a synagogue against vandals who had painted the synagogue with anti-Semitic slogans, phrases, and symbols. In that case, the U.S. Court of Appeals for the Fourth Circuit, upholding the trial court’s determination, found that the Civil Rights Act of 1866 was not intended to apply to situations in which a plaintiff is not a member of a racially distinct group but is merely perceived to be so by the defendants. Thus, finding that Jews were Caucasians and thus not racially distinct, the court dismissed the Congregation’s claim.

Interestingly, the plaintiffs in the two actions asserted two distinct theories under which they claimed to be protected by the Civil Rights Act. Al-Khazraji argued that the protections afforded by the Act against racial discrimination must be understood in the context of the U.S. Congress’ understanding, in 1866, of the term “race.”

Under this analysis, persons are entitled to bring a claim under the Act if they are subject to discrimination because of membership in a group of a type considered a “race” at the time of enactment. Documentary evidence, as well as legislative history, indicated that during the mid-nineteenth century race was generally understood to refer to the kinds of characteristics which today we understand to be covered by “ethnicity” or “ancestry.”

In contrast, Shaare Tefila Congregation argued that the Civil Rights Act of 1866 should be understood to protect members of any group from discrimination if the persons discriminating viewed that group as racially distinct and were motivated by racial prejudice.

In any event, it was clear that the conclusions of the Courts of Appeals of the Third and Fourth Circuits were at odds.

One court extended the Act’s protections to members of groups not racially distinct under modern notions of racial taxonomy; the other did not. It is because of this conflict, it is safe to assume, that the Supreme Court agreed to review both of these cases.

COURT QUOTED 19TH CENTURY SOURCES

The Supreme Court rejected the contention that, as a Caucasian who had allegedly been the object of discrimination by other Caucasins, Al-Khazraji could not seek relief under the Act.

The Court quoted at length from 19th century sources which commonly used the term “race” to refer to what today would be regarded as ethnic groups, such as Germans, Swedes, Jews and Arabs. The Court also referred to legislative history which demonstrated Congress’ intent to protect persons subjected to intentional discrimination solely because of their ancestral or ethnic characteristics.

The Court found that Shaare Tefila Congregation could assert a claim under the Act for similar reasons. Jews were among the people considered to be a distinct race in 1866 and hence were under the protection of the statute. Thus, as with Al-Khazraji, the Congregation was not foreclosed from stating a claim under the Act simply because the defendants and the Congregations members were both part of what today is considered the Caucasian race.

However, the Court specifically rejected the argument that one could sue under the Act simply by alleging racial animus without asserting also that the animus was directed towards the type of group Congress intended to protect when it passed the statute. “To hold otherwise,” the Court stated, “would unacceptably extend the reach of the action.”

PRACTICAL IMPACT OF THE DECISIONS

What is the practical impact of these decisions? To be sure, that impact should not be overstated. In both cases, other remedies would have been available to the parties under state, and at least in the case of Al-Khazraji, federal law.

However, the procedural limitations on bringing other types of civil rights claims are often linked to adherence to complicated procedural requirements and narrow time constraints. Further, state and other federal laws generally do not offer remedies specially linked to discrimination of the type alleged in these cases.

If any group should be aware of the dangers of discrimination against individuals based on their ancestry, it should be the Jews. The Court’s determination may be viewed as an important opportunity for plaintiffs to seek recourse and remedy from institutions particularly identified with the protection of equal treatment of all members of society — the federal courts.

For both the practical additional remedies afforded and the symbolic value of such remedies, this additional vehicle by which to guard against ethnic discrimination should be welcome even if it leads to an additional opportunity for vindication in only a relatively small number of cases.