Saint Francis College v. Al-Khazraji

William H. Rehnquist:

We will hear argument now in No. 85-2039, Saint Francis College versus Mahid Ghaidan Al-Khazraji, etcetera.

Mr. Fisfis, you may begin whenever you are ready.

Nick S. Fisfis:

Mr. Chief Justice, and may it please the Court, this case involves issues similar to that present in the prior discussion, and started by the filing of three complaints in the Western District of Pennsylvania by plaintiff Dr. Al-Khazraji charging various offenses under the civil rights laws of the United States.

I go into the detail only because there is some question as to what the pleadings here actually raise, and therefore you have the question as to the kind of charges that were in fact made.

My brief sets forth the allegations in the various complaints here, and I would note that the operative complaint as viewed by the District Court did not charge any racial discrimination but charged discrimination on the basis of national origin and religion, and that therefore the question then becomes whether or not an Arab under the facts here would be treated as falling within the scope of section 1981 of Title 42 in a situation when in fact there was not a racial allegation made.

Now, I should say in all fairness that District Judge Zigler who had handled the case before it was reassigned to Judge Menser had read the case or had read the various pleadings more broadly than Judge Menser did and more broadly apparently… and as broadly apparently as the Third Circuit did in this particular situation.

But the fact remains that the operative complaint as I think it was read by both Judge Zigler and Judge Menser was really the second complaint, the one filed by prior counsel for the plaintiff here, and that complaint basically restricted itself to a national origin and a religion complaint, not a racial one.

However, the issue here seems to be premised on the notion that in fact a racial complaint at least could arguably be read into the complaint.

That seems to be the basis upon which the Court granted certiorari in this case, and therefore other than mentioning the limitations on the actual pleadings, which is a fact that the Court might take into consideration, I will then deal with the argument as to whether or not Arabs do fall within the scope of Section 1981 of the-

Byron R. White:

What did the Court of Appeals hold?

Nick S. Fisfis:

-The Court of Appeals, Your Honor, held here that Arabs do fall within the scope of Section 1981.

Byron R. White:

So the race issue was… rather than national original was before it.

Nick S. Fisfis:

Oh, yes, indeed, it was.

I mean, the least the way the Third Circuit interpreted the factual situation.

Byron R. White:

So we are reviewing a judgment of the Court of Appeals, so I am not sure the pleadings have got much to do-

Nick S. Fisfis:

Well, Your Honor, the point about getting into the pleading history and what have you is that the various pleadings are some indication that from the beginning the plaintiff here has been viewing this as a national origin claim and that Arab at least initially and to some extent has been characterized as being in the national origin category.

Byron R. White:

-The Court of Appeals said… went on a racial ground, didn’t it?

Nick S. Fisfis:

Yes, but I am discussing this in terms of, to use the phrases that were used previously, the-

Byron R. White:

So you will discuss it on a racial ground.

Nick S. Fisfis:

-Yes, I am… yes, I will, Your Honor.

Byron R. White:

All right.

Nick S. Fisfis:

My position is really a rather simple one in this case.

The statute basically talks in terms of white citizens and it seems fairly well admitted by the plaintiff himself in the deposition that he gave that he qualifies as a Caucasian, i.e., that he is in fact racially white.

The charges of discrimination are presumably that he was discriminated against in relation to other people who are racially white, and our position very simply is that in that kind of a factual situation a claim under Section 1981 is not made.

And it really comes down to that.

He has admitted in the deposition that he does qualify as a Caucasian, i.e., a person who is racially white.

The statute has been construed by this Court to apply on a racial basis, not on a national origin basis, not on a religion basis, not on a sex basis, and therefore once the plaintiff in essence admits that he is a Caucasian, and when his purported complaint is that he was discriminated against in denial of tenure in relation to other Caucasians, that a claim is not made under the statute.

Byron R. White:

He doesn’t have in his allegations or in his proof things that are in the prior case that was argued-

Nick S. Fisfis:

Absolutely.

Byron R. White:

-Namely, that he was discriminated on the grounds of race because that was the intent of the people who fired him.

Nick S. Fisfis:

There is absolutely no evidence in the record to my knowledge, Your Honor, that there is any racial animus at all in terms of the decision that was made.

Byron R. White:

Or that the decision was made because they thought that he was of different race.

Nick S. Fisfis:

That is correct, Your Honor.

My recollection of the record is that there is absolutely no evidence in the record at all to indicate that.

Now, I will say in all fairness that there was very limited discovery in the matter.

Byron R. White:

So his argument, you say, is that he claims to have been discriminated on the grounds of race but concedes he is not of a different race?

Nick S. Fisfis:

That is correct That is basically what we end up having here because the presumed discrimination was in relation-

Byron R. White:

How did the Court of Appeals come to such a… make such an error then?

Nick S. Fisfis:

-Your Honor, all I can do is read the way the Court of Appeals dealt with the racial issue and defined it as being membership in a group that is ethnically and physiognomically distinctive, and that presumably would ignore the admission of the plaintiff that he in fact was a Caucasian and was presumably discriminated against in relation to other Caucasians.

Byron R. White:

Well, ethnicity, that may be different from race, isn’t it?

Nick S. Fisfis:

I would submit it is, Your Honor.

In going back to the discussion in the earlier-

Byron R. White:

You say the Court of Appeals applied the statute too broadly if it applied it just to ethnic groups.

Nick S. Fisfis:

-I would suggest that it did, Your Honor, yes, that the language used in the statute talks about white-citizens.

It does not talk about various ethnic groups, and therefore I would submit that ethnic group or national origin claims are not within the scope of Section 1981, and that essentially is what the plaintiff is arguing in this case.

Antonin Scalia:

You say ethnicity is different from race.

It is nowadays, but it was not in 1866, was it?

Nick S. Fisfis:

Your Honor, I have read the references to the Congressional Globe debates that are cited-

Antonin Scalia:

Never mind that.

The dictionary definitions that are set forth extensively in the briefs.

Nick S. Fisfis:

-Your Honor, I would submit that that is irrelevant, that the critical thing is that the statute is in terms of white citizens, and the contrast therefore to have a discrimination claim under 1981 has to be in reference to white, which is a racial characterization, and that you cannot contrast that and treat Germans or English or Greeks or Italians as being people within the scope of the statute.

Antonin Scalia:

Even though they thought they were doing something about race in the sense that they understood race at that time.

Nick S. Fisfis:

If the Court please, I do not think that the legislative history is anywhere near clear enough to indicate that that in fact is what the 39th Congress had in mind whenever they were going through the debates on the Civil Rights Act of 1866.

I mean, I do not dispute that there were a number of references in the legislative history where what we now call ethnic groups were characterized as races, but there is no real indication as I read that history that in fact there was a clear intent that those people be included.

Actually, if you look at-

Antonin Scalia:

Well, I think it is clear that what they meant by race is something quite different from what we mean by race.

I think that is absolutely clear.

Not just from the legislative debates, but from the dictionary definitions at the time.

Nick S. Fisfis:

-Justice Scalia, even if that is so-

Antonin Scalia:

They meant a stock, a stock of people, whether it was ethnically distinct or not, but I-

Nick S. Fisfis:

-Justice… I am sorry.

Antonin Scalia:

-I think the other point you are making I think is worth pursuing, and that is, does white person imply only color, or does it mean race?

Nick S. Fisfis:

Well, I-

Antonin Scalia:

You say it means just color.

Nick S. Fisfis:

-Color in the racial sense at least.

Antonin Scalia:

Color in the racial sense at least.

Nick S. Fisfis:

Because otherwise we start getting into the situation that we then start looking for 1981 purposes at the individual shades of the purported plaintiffs and then starting deciding what degree of darkness or lightness, depending on a particular situation, we are going to say is sufficiently distinctive so that we are going to get involved in saying that we are making out a Section 1981 claim because the purported favored group is dark and the purported aggrieved group is light or vice versa.

And I would suggest that the characterization in the statute, because of the use of the term white does not include ethnic groups even though there were some discussions during the legislative history and even though the dictionary definitions indicate that the term race may have had some meaning beyond or was used in other than the racial sense in which we use it today.

The fact is that the statute was not written that way, and I would submit that if Congress had in mind the notion that all these various ethnic groups were to be covered, there would be some… much broader language could have been used than was used in the actual statute.

I mean, actually, the interesting thing is, if you look at the legislative history, when they start talking about the different kind of ethnic groups and they are described as race, it so often comes up in the question of they are really talking about the legislatures having power to discriminate by saying the Germans, for example, are not allowed to own property and things of that sort.

In some ways we go back to the earlier discussions that the Court had as to whether the statute in fact covers private claims of action, and the decisions of the Court have determined, of course, that it does, so we have to operate on that premise.

And you also run into the generalized disagreement that the Court has had over the years whether the Civil Rights Act of 1866 and the reenactment in 1870 were in fact designed to deal solely with the freed slaves and the people in the south rather than the broadened scope that has since been given so that it now apparently covers discrimination against whites, at least vis-a-vis people of other races.

But those decisions have been reached.

Unless the Court is prepared to find exceptions to those or overrule those earlier lines of cases, we have to face the fact that this Court has already decided that the scope of the statute goes beyond the mere protection of blacks which was one of the earlier positions that was taken.

But in light of the history, I would suggest that it would be inappropriate for the Court to go beyond the broad categorizations and extend the reach of the statue to in essence start covering ethnic groups or nationality groups or nation origin groups, which is the suggestion that is being made here.

Byron R. White:

If this person was denied tenure to make room for an Asian, say, he could stake a good claim under McDonald.

Nick S. Fisfis:

I think that is correct, Your Honor.

Byron R. White:

Or to make room for a Negro.

Nick S. Fisfis:

That, too, would be correct under McDonald.

Byron R. White:

Well, how do we know what the facts are here?

Nick S. Fisfis:

Well, the only thing we have in the record at this point is that the only other person granted tenure-

Byron R. White:

Was a white person.

Nick S. Fisfis:

-was the plaintiff’s wife, and she was granted tenure two years after he was turned down for tenure.

I mean, the record other than that has no evidence in it as to what occurred as far as the granting of tenure is concerned.

Byron R. White:

But his claim is that he was discriminated against because he was ethnically different.

Nick S. Fisfis:

The way the Third Circuit apparently has-

Byron R. White:

Well, his claim must include discrimination based on ethnicity, on his different ethnic character, because he concedes he is not different racially.

Nick S. Fisfis:

-That is correct, Your Honor.

His claim essentially is that he was discriminated against on the basis that he is an Arab who was born in Iraq.

John Paul Stevens:

Yes, but may I ask, he doesn’t just limit it to ethnic differences, but at least the Court of Appeals ethnically and physiognomically distinctive.

John Paul Stevens:

In other words, one of the two elements of their test, as I understand it, is some kind of inherited characteristic that is visible physically, that you can see.

People are maybe eight feet tall or something, and also from a particular country.

Nick S. Fisfis:

Justice Stevens, that is correct as far as the Third Circuit is concerned.

That is not necessarily part of the complaint of the plaintiff.

John Paul Stevens:

No, but in order to prevail under the Third Circuit’s theory, which we are reviewing, he would have to prove, as I understand it, that he was in a separate ethnic group and a separate group that was physiognomically distinctive from the general population.

Nick S. Fisfis:

I think that is correct, Your Honor.

John Paul Stevens:

So I mean there are two ingredients that are part of their test.

Nick S. Fisfis:

Yes, if you treat that as a… I always get confused… as an “and” rather then as an “or” in terms of the requirement that both be present, that would-

John Paul Stevens:

And they would therefore fit into the point that Justice Scalia was suggesting earlier, that a given stock is subject to… if you are of a particular national origin which also has particular physical characteristics that make you identifiable, and then that group as a whole is subjected to discrimination, you fit this test.

Nick S. Fisfis:

-If the reading that Justice Scalia is giving it is the appropriate, one, then I think what you say does follow.

I don’t see how the answer could be anything other than an affirmative.

John Paul Stevens:

But see, it wouldn’t necessarily cover every national origin claim.

You might have two countries in South American where the people are not physiognomically distinctive, but yet they might be different from the population at large in the United States.

Nick S. Fisfis:

I suppose that might be true, Your Honor.

I am not totally sure.

But if you read it as requiring that both… that both be present, that it be genetically part of an ethnically and physiognomically distinctive subgrouping, then presumably you would need both to be able to make a claim out.

Now, how you end up making it out and the kind of proofs that would be required and what you would end up charging a jury or the standard that the District Judge would use in terms of factfinding, I would not be presume to be able to tell you.

Byron R. White:

Well, the Third Circuit wouldn’t protect Germans on that basis.

Nick S. Fisfis:

It might.

Byron R. White:

Well-

Nick S. Fisfis:

I suppose it might decide or a factfinder could decide that German is an ethnic group, and that there are some physical characteristics that are uniquely enough belonging to Germans that one could end up saying they have been discriminated against under this particular test.

Byron R. White:

-Or Irish.

Nick S. Fisfis:

Same thing with Irish, I mean, presumably every ethnic group in one way or another, at least one way or another someone could end up saying they have physiognomically distinctive characteristics that fit within the stereotype of a particular ethnic group.

Byron R. White:

The Swiss.

They model.

Nick S. Fisfis:

I mean essentially without rehashing what was said during the first argument, that essentially is our position, that there are really no precedents of the Court that would include the plaintiff here within Section 1981 that the statute itself should be read the way I have suggested that it should, that a claim here which is essentially a national origin claim does not fall within the scope of the statute.

If the Court has no other questions, I would be prepared to go on and discuss the retroactivity issue.

Again, the position on the retroactivity issue is really a rather simple one.

This Court decided in Wilson versus Garcia that in Section 1983 cases the personal injury statute of the various states would be used to decide the scope of the statute of limitations for Section 1983 cases.

The Third Circuit concluded in the Goodman case that the two-year statute would be applied, and that it is being applied in Section 1981 cases, which is what is present here.

Nick S. Fisfis:

The question before us is how we would apply the retroactivity standards of Chevron Oil versus Hughson.

As I read the recent decision of this Court in the criminal retroactivity case that came down not too long ago there is specific language indicating that that case is limited to criminal cases and not to civil cases and that Chevron is still the standard to be applied in civil retroactivity cases, which is what we have here.

Again, I really have two simple arguments in regard to the retroactivity.

One, that the proper scope is not necessarily the degree of certainty within a particular circuit, but that considering the wide ranging divergence of views as to statutes that were to be followed in the various circuits through the United States in the application of statute of limitations under the Federal Civil Rights Acts, that no person could reasonably have relied on any particular statute of limitations and that therefore the onus was on plaintiffs to in essence go for the shortest potential statute in a particular jurisdiction.

William H. Rehnquist:

Well, do you think it is permissible, Mr. Fisfis, to go circuit by circuit on this retroactivity business?

Nick S. Fisfis:

Your Honor, obviously if the Court concludes that it is permissible, then it can be.

My suggestion is that it really should be done on a national basis.

If you do it on a circuit by circuit basis, then I would suggest that as of the time of the accrual of the cause of action here for the reasons basically set forth in the brief when I discussed the Davis case and the way the Pennypacker case had been decided previously, that it was nowhere clear that a six-year statute of limitations rather than a shorter statute of limitations was going to be… was going to be applied, that those cases if you read them carefully simply were not clearcut enough so that one could say that in all 1981 cases regardless of which of the particular subdivisions of 1981 was going to be applied and regardless of the type of case involved, that there was going to be a six-year statute applied rather than a two-year statute.

Therefore without getting into the convenience factor and the notion that full retroactivity here gives a much greater degree of certainty than attempting to go through the procedure that has been happening since Wilson versus Garcia came down with this myriad of cases in the circuits trying to decide how much certainty was there and how much certainty was there not, that the certainty aspect would in fact be enhanced by a determination that full retroactivity is appropriate.

But in any case, if you go through the Pennsylvania cases, that is the Third Circuit cases interpreting the status of its decisions on how the statute of limitations was to be applied in Section 1983 cases, I suggest to you that there was no certainty upon which anyone could have relied, and that in any case the 1978 amendments to the Pennsylvania statute of limitations statutory scheme completely reopened the door anyway, and that the Third Circuit in its own cases basically indicated that the 1978 amendments cast substantial doubt on the statute of limitations aspect of Davis.

Davis is specifically mentioned by the Third Circuit, end yet in our case the the Third Circuit relies on Davis as indicating certainty was present as far as the retroactivity is concerned.

I will reserve any further time I have, unless the Court has any questions.

William H. Rehnquist:

Thank you, Mr. Fisfis.

We will hear now from you, Ms. Mitchell.

Caroline Mitchell:

Mr. Chief Justice, and may it please this Court, we are asking this Court today to decide whether Section 1981 of the Civil Rights Act of 1866 covers those of Arab ancestry.

We premise our argument on two very important points.

First, the meaning of the word 1987 is not the same as those legislators used it in 1866.

Antonin Scalia:

[inaudible]

Caroline Mitchell:

That is correct, Your Honor.

Antonin Scalia:

Okay, you tell me how you get the word “race” to be relevant to the meaning of “white person”.

Caroline Mitchell:

Your Honor, we look at the term 1866 Act was passed was that in the 1830s there was an influx of Irish and German.

These waves of immigrants created some severe problems for persons in states such as Ohio who believed as advocates of the American nativist movement that the Irish and the Germans were not fit to live with those of the Anglo-Saxon race.

A prominent Know-Nothing tract published in 1854 indicated that Irish and Germans were not of the type of quality of persons that we would want dwelling with those of the Anglo-Saxon race, and openly advocated discrimination against those people.

Antonin Scalia:

Right.

Now, are you going to answer my question?

Caroline Mitchell:

Yes, Your Honor.

Antonin Scalia:

I mean, I believe all of that, but the way to combat that would have been to use the word “race” in the statute.

Now, they did not use the word “race” in the statute, did they?

Caroline Mitchell:

That is correct, Your Honor.

The legislation-

Antonin Scalia:

So the dictionary definitions you should have given us were the dictionary definitions of “white” instead of the dictionary definitions of “race”.

Caroline Mitchell:

-Your Honor, Senator Trumble, who was the author of the 1866 legislation, spoke to the purposes of the 1866 legislation and in that legislative history indicated that one of his objectives was to make sure that persons of all races and colors and previous conditions of servitude had equal rights under the law.

Antonin Scalia:

And that is the only thing you are going to rely on to get us to believe that the word-

Caroline Mitchell:

No, that is not all, Your Honor.

Antonin Scalia:

-that the word “white person” in the statute means “race”?

Caroline Mitchell:

Your Honor, the concept of race was a generally understood term for the legislatures in those days to use in the sense that we now use the word “ancestry”.

To the legislators in 1866 “race” meant “ancestry”.

Senator Merrill in the case indicates-

Antonin Scalia:

Ms. Mitchell, I don’t think you are understanding me.

I believe all that.

I am with you on that point.

But the word “race” does not appear in the statute.

Caroline Mitchell:

-That is absolutely correct, Your Honor.

Antonin Scalia:

So of what relevance is it then?

Caroline Mitchell:

It is relevant because this Court has indicated in several decisions that as a racial character of rights that 1981 was intended to protect.

We look back at the 1866 Act to see what the meaning of 1866, and it was a far different definition.

Those legislators believed that by covering various races they were covering the Swiss, the German, those of the Scandinavian race, those Moors and Turks, and some immigrants who were yet to come to the shores.

Antonin Scalia:

And the only evidence that “white person” in the statute means “race” was the one snippet of legislative history you just quoted.

Caroline Mitchell:

No, Your Honor.

There are-

Antonin Scalia:

And you say later decisions of ours, which say it is-

Caroline Mitchell:

-That is correct.

I believe that your later decisions looked at the 1866 Act to see what was meant by the term “race” which to this day has not-

Antonin Scalia:

-The term 1866 Act.

Caroline Mitchell:

-That is-

William H. Rehnquist:

How do you get around that?

Caroline Mitchell:

-Your Honor, we look at the decisions of this Court.

William H. Rehnquist:

Well, how did this Court get around that?

0 [Generallaughter.]

Caroline Mitchell:

Your Honor, this Court has never addressed the issue.

Caroline Mitchell:

This Court has never defined “race” for us.

William H. Rehnquist:

[inaudible]

Caroline Mitchell:

Well, Your Honor, if this Court has held that 1981 is intended to protect against racially motivated deprivals of the right to contract-

Byron R. White:

The 1866 Act [inaudible] all citizens, all persons born here are declared to be citizens, and such citizens of every race and color-

Caroline Mitchell:

-Are intended to enjoy equal rights under the law.

Yes, that is correct.

Byron R. White:

-Well, the word “race” is in the statute.

Caroline Mitchell:

That is correct, Your Honor, and if we go from that sentence-

Sandra Day O’Connor:

But what did the statue mean by “white persons”?

Who were white persons?

Caroline Mitchell:

-Your Honor, the word 1966.

Anglo-Saxon was the term of preference.

The legislators were unanimously Anglo-Saxon.

They intended in their definitions in 1866 to characterize the Anglo-Saxon race as the one to which all other races aspired.

Sandra Day O’Connor:

So “white persons” meant white Anglo-Saxon protestants?

What?

What did it mean?

Caroline Mitchell:

Your Honor, the term 1865 legislators, and it as this exact problem, the problem created by the Know-Nothing Party that certain legislators intended to correct under the 1866 Act.

They said that if Ohio shall pass an Act which denies to a German citizen the right to contract-

Sandra Day O’Connor:

Yes, but stop for just a minute.

Did “white person” mean Anglo-Saxon?

Is that the short definition?

Caroline Mitchell:

-In 1866, I believe that it was, for the additional reason that in 1866 immigration into this country was very severely limited to only races such as the Germans and the Irish in the east and the Chinese in the west.

One of the problems facing the legislators of 1866 was that there would be discrimination against Chinese, there was discrimination against Irish, there was discrimination against Germans, and the 1866 Act was intended to give to all men equal protection-

Byron R. White:

You are defending the Court of Appeals judgement here.

Caroline Mitchell:

-I am partially defending it in the sense that they indicate-

Byron R. White:

You mean you are not defending it totally?

Is that it?

Caroline Mitchell:

-I am not defending their definition, Your Honor, for this reason.

I believe that ancestry in the minds of the 1866 legislators meant race.

Caroline Mitchell:

I believe that the 1866 Act is intended to protect those of different ancestries.

The Third Circuit held that an Arab, an ethic Arab of Arabian and Iraqi ancestry could pursue a claim under Section 1981.

We agree with their findings, but we believe that the test that the Third Circuit used has some very severe problems for this Court-

Byron R. White:

The test was what?

Caroline Mitchell:

-Their test is that one who is ethnically and physiognomically different may maintain a claim under 1981.

Byron R. White:

Yes, and you don’t agree with that test?

Caroline Mitchell:

We suggest that the proper test is that one who is of an ancestry viewed as different may maintain a claim under 1981.

We believe that if you were to use the ethnical and physiognomical test you would get the Federal District Courts into looking at the physiognomical characteristics of people-

Antonin Scalia:

Viewed by whom?

By the defendant?

I mean, suppose I don’t like the McCoys.

Caroline Mitchell:

-Pardon me?

Antonin Scalia:

I am a Hatfield, and I don’t like the McCoys.

Caroline Mitchell:

That’s correct, Your Honor.

Antonin Scalia:

And I view all McCoys as bad.

I don’t care where they are.

If they have the name McCoy, they are bad.

Now, is that-

Caroline Mitchell:

No, Your Honor, because they are not of a distinct ancestral group.

Our definition-

Antonin Scalia:

-Who decides who is a distinct ancestral… I think they are a distinct ancestral group.

I think all McCoys are McCoys.

Caroline Mitchell:

-Your Honor, then you are into the subjective type of discrimination issue.

Antonin Scalia:

That is what I am trying to get at.

Is it subjective: If it is not subjective-

Caroline Mitchell:

No, Your Honor.

John Paul Stevens:

-You have to know who the real McCoy is.

That is right.

That is what I was leading up to.

0 [Generallaughter.]

Caroline Mitchell:

Well, I am not, and you are probably not.

The ancestral test, Your Honor, is an objective test.

It looks at whether the ancestry of a certain people is one which has been viewed as distinct.

For instance-

William H. Rehnquist:

How-

Caroline Mitchell:

-the Jews have a certain ancestry.

William H. Rehnquist:

-How easy does that ancestry word make it much easier?

You have referred to the Scandinavians as of one ancestry.

Now, could a person of Norwegian extraction bring an action against someone of Swedish extraction for discrimination?

Caroline Mitchell:

Absolutely, Your Honor.

The point is that if you are discriminated against because your ancestry is Norwegian, you have a cause of action under Section 1981, regardless of whether the perpetrator is-

William H. Rehnquist:

In spite of the fact that Norway and Sweden were one country up until 1905?

Caroline Mitchell:

-Your Honor, that makes no difference to us, and the reason is that country of origin is not a good test for that exact reason.

If this-

William H. Rehnquist:

How about someone of Bavarian extraction suing someone of some other German area?

Caroline Mitchell:

-Your Honor, if there is discrimination because of the ancestry of the person, if a college refuses to tenure Germans believing for whatever reason that they don’t deserve to be tenured because of an ancestral-

Byron R. White:

What about discriminating against somebody he is a son or because she is a daughter of a felon?

Caroline Mitchell:

-Your Honor, that is not ancestral discrimination, in our opinion.

Ancestral discrimination as defined by the ethnologists in the 20th century relates to the culture from which your forebears came.

There is in fact a Jewish culture, a Scandinavian culture, an Irish culture, a German culture.

William H. Rehnquist:

What if I don’t like people who were born in Rhode Island, or the Rhode Island culture?

Caroline Mitchell:

Your Honor, I don’t believe that ancestry takes into account your state as being one of the covered categories.

William H. Rehnquist:

If it can take into account someone born in Bavaria, why can’t it take into account someone born in Rhode Island?

Caroline Mitchell:

Because the common perception is that Rhode Island people are not of different ancestry than Pennsylvanians.

William H. Rehnquist:

But that just answers the question by defining it.

How about somebody born in New England as compared with somebody born in the deep south?

Caroline Mitchell:

Your Honor, I don’t believe that that is the type of ancestral discrimination that we want to cover under our test nor was it the type of ancestral discrimination that the 1866 Act-

Byron R. White:

It may make a lot more sense than, say, Swedes and Norwegians.

There is a lot of discrimination against Yankees in the south, and probably against southerners in the north.

Why wouldn’t that be covered?

Caroline Mitchell:

-Your Honor, the ancestral theory relates back to what was in the minds of the legislators in 1866.

The legislators in 1866 clearly considered race as meaning ancestry.

The fact that we use the term “race” today to mean the five divisions of mankind as proposed by modern ethnologists does not make any difference.

William H. Rehnquist:

Ancestry means forebears, and all of these questions that have been put to you say what about this kind of forebears.

And you speak as though you have in mind something much narrower than just forebears when you use the term “ancestry”.

Caroline Mitchell:

Your Honor, I am trying to avoid a country of origin definition because I think country of origin is a very difficult thing.

I think that you can be traditionally viewed as Irish whether your ancestors are the Irish Free State or whether they were born in Betfast.

I think that this Court does not need to address that precise issue.

The ancestral definition that we propose looks to whether your forebears are of a different subgroup or-

Antonin Scalia:

You didn’t like McCoys either, and you know, that is why I picked McCoys, because they are all of the common ancestor.

They all have the same name.

They are all from the same-

Caroline Mitchell:

-But they are not of the type of people that the 1866 Act was intended to protect.

Antonin Scalia:

-Oh, that is your second qualification.

Caroline Mitchell:

That is the second-

Antonin Scalia:

It has to be an ancestral group that the Congress in 1866 would have identified as a race.

Caroline Mitchell:

-That is certainly one workable definition, Your Honor, but then we get to the-

Antonin Scalia:

Now, what does that mean?

Is that what you are proposing, that it has to be, Number One, an ancestral group, and Number Two, a group that the 1866 Congress would have said is a race?

Caroline Mitchell:

-We can look to the 1866 Congress usage of the term “race” to see what they meant.

Antonin Scalia:

I know we can.

Are you going to answer my question?

Is that the test you are proposing, Number One, ancestor, and Number Two, it is a group that the 1866 Congress would have considered to be a race?

Caroline Mitchell:

That is the test that we are proposing.

John Paul Stevens:

That is the test you are proposing?

And then you have to prove that they thought about the Persians as a separate rate.

Caroline Mitchell:

Your Honor, I think that there is enough language in the 1866 Act to suggest that those legislatures did view as separate races those coming from those discrete geographic areas which are perhaps now known as countries and perhaps not.

John Paul Stevens:

Let me just get one thing clear in my mind.

You are not defending the Court of Appeals’ second element, physiognomically distinctive.

You want us to change that definition, and you did not file a cross-petition for cert.-

Caroline Mitchell:

That is correct, Your Honor.

John Paul Stevens:

-But you want us to in effect broaden the definition that they applied because I suspect maybe you have concern about whether your client can satisfy that element of the test.

Caroline Mitchell:

No, that is not correct, Your Honor.

Your Honor, my client and his physiognomy would be viewed by the Third Circuit as the type of physiognomy entitling him to maintain-

Byron R. White:

I am wondering if you want to win the case.

You say the court of Appeals was just wrong in its test, although you won under the test.

You say please don’t adopt that test, use this one, so if we agree with you about the Court of Appeals but disagree with you on your test, your client is going to lose.

Caroline Mitchell:

-Well, Your Honor, I believe that this Court can refine this notion of physiognomy.

Byron R. White:

It isn’t much of a refining.

You just reject the Court of Appeals test.

Caroline Mitchell:

Your Honor, I reject it in part.

Insofar as the Court of Appeals test suggests that ancestry or ethnic origin is part of the foundation for proving your 1981 claim, that is certainly a workable and usable definition that these courts can utilize.

I am not in favor of a test which would require a Federal District Court to look at the physiognomy of a person who comes in and indicate that if you have slanted eyes then you are entitled to pursue your claim because you are probably oriental, but if your eyes are not slanted enough then how can we conclude that you are entitled to sue?

What would happen to Mr. Justice Marhsall’s father if we use a physiognomy test as part of the ethnic origin or ancestry test.

Thurgood Marshall:

Don’t worry about my father.

What will you do for somebody from South Africa?

Caroline Mitchell:

That is precisely the issue.

Thurgood Marshall:

What would a resident of South Africa be classified as?

Caroline Mitchell:

Your Honor, under the modern day classifications of race residents of South Africa are not classified at all.

The modern day definition of race adopted by the EEOC-

Thurgood Marshall:

You mean they don’t exist?

Caroline Mitchell:

-That is correct, Your Honor.

0 [Generallaughter.]

There are vast groups of people who do not fall within-

Thurgood Marshall:

What difference do you make between the people from Nigeria and the people from Sierra Leone?

Caroline Mitchell:

-Your Honor, the people from Nigeria are Caucasian, because there is a portion of Caucasia-

Thurgood Marshall:

I have never seen one that looks like a Caucasian to me.

0 [Generallaughter.]

Caroline Mitchell:

-That is precisely… that is the point, Your Honor.

The point is that if we use a dictionary definition of Caucasian we have Middle East Caucasians who are Arab-

Thurgood Marshall:

Incidentally, I though Caucasians were from the Caucuses.

Caroline Mitchell:

-Your Honor, the original definition in 1854 was that it was a resident of the Caucuses Mountains between the Black Sea and the Caspian Sea.

Thurgood Marshall:

Well what Caucus are you from?

0 [Generallaughter.]

Caroline Mitchell:

Your Honor, not from any right now.

Thurgood Marshall:

But you are Caucasian.

Caroline Mitchell:

Beg pardon, Your Honor?

Thurgood Marshall:

But you are Caucasian.

Caroline Mitchell:

I am what the EEOC has called the white European subdivision of the Caucasian race.

We also have North African persons who are usually black, residents of Libya who may in fact be Jews.

We also have the Hispanic Caucasians who are Mexican.

If you believe the petitioner’s argument here Hispanic Caucasians cannot sue because they are Caucasian.

Arabs who are Middle East Caucasian cannot sue because they are also Caucasian.

They may have a different skin color.

They may be ethnically and physiognomically different under the Third Circuit’s test.

They are certainly ancestrally different under our test which we propose to this Court today.

But the fact that they are Caucasian under some modern ethnological theory thus means that they are not entitled to sue under Section 1981.

We cannot believe that this Court should use that as a definition.

We cannot believe that the Federal District Courts here should look at one of 50 dictionaries to see whether a Syrian is a Caucasian or is-

Byron R. White:

Well, you wouldn’t mind us saying that, I suppose, as far as the Third Circuit went it was right.

Caroline Mitchell:

-If you choose to affirm the Third Circuit, Your Honor, my client would be very happy, but that is not our theory of this case.

Byron R. White:

Well, I know, but you certainly don’t argue that if a person is ethnically identifiable and has these physical characteristics, that you shouldn’t discrimination against him.

Caroline Mitchell:

Absolutely, Your Honor.

That is exactly true.

Byron R. White:

Well, you just want to argue some other case.

That is all.

You just object to the fact that the Third Circuit seems to have limited the coverage to those characteristics.

Caroline Mitchell:

My particular concern with the Third Circuit-

Byron R. White:

Well, isn’t that right, or not?

Caroline Mitchell:

-Yes, that is correct, Your Honor.

Byron R. White:

Well, you want to argue somebody else’s case.

Caroline Mitchell:

Well, Your Honor, what I am attempting to do is to-

Byron R. White:

So you would be very happy, I suppose, if you said we just don’t reach the question of whether the statute is any broader than that.

We know we were urged to do so by counsel, but we just don’t reach it.

We don’t have to.

Caroline Mitchell:

-You do not have to reach that.

Byron R. White:

We just leave it open, just leave it open.

Caroline Mitchell:

That is correct, Your Honor.

Byron R. White:

You ought to be happy with that.

Caroline Mitchell:

Well, the issue, Your Honor, I think-

Antonin Scalia:

Well, maybe you think the Third Circuit’s test is so implausible that we are so unlikely to adopt it that you are trying to suggest one that would win for your client that is plausible.

Caroline Mitchell:

-Your Honor, I believe-

Antonin Scalia:

Maybe that is what you are trying to do.

Caroline Mitchell:

-I believe that the theory that we have suggested to this Court, the ancestry theory is one which is much more workable in the Federal District Courts as a threshold question for persons advancing a 1981 claim.

Byron R. White:

Ms. Mitchell, I-

-I think the Third Circuit’s test is subsumed in yours.

Caroline Mitchell:

Part of it is, Your Honor.

That is correct.

Byron R. White:

Part of it?

Ms. Mitchell, aren’t you really suggesting a sort of national origin test?

Caroline Mitchell:

Your Honor, the national origin question is a very difficult one that we need not address, first of all.

Sandra Day O’Connor:

Well, isn’t that what at the bottom of it all your test amounts to?

Caroline Mitchell:

Your Honor, I believe not.

And I believe that if a person, for instance, who is Armenian of ancestry is denied a right to contract because they believe he might be a terrorist, that if we use a national origin test he loses because Armenia is not a country.

If we use an ancestral test-

Sandra Day O’Connor:

Well, how can discrimination against Arabs because they are Arabs rather than Caucasians be anything but a national origin sort of a test?

Caroline Mitchell:

-Your Honor, we believe that it is a test that most properly focuses on the fact that those of Arab ancestry are, for instance, traditionally disadvantaged, viewed as different, of a different culture-

Sandra Day O’Connor:

Well, if it looks like a national origin test and sounds like a national origin test, is that what it is?

Caroline Mitchell:

-It may be a national origin test.

The problem-

Sandra Day O’Connor:

And then what do we do with Jones, which says that doesn’t get covered under the statute?

Caroline Mitchell:

-That is correct, Your Honor, but I believe that it would be-

Sandra Day O’Connor:

So that is why you want to avoid calling it a national origin test.

Caroline Mitchell:

-That is correct.

That is precisely our point.

Sandra Day O’Connor:

Even though it looks like a national origin test.

Okay.

Caroline Mitchell:

In art it looks like national origin.

But our position is that if the Court looks to the ancestry of the person as the 1866 Act suggested, that in fact not only is our client an Arab able to maintain suit under 1981, the Jewish members of Shaare Tefila Synagogue will win their case because ancestrally they were perceived to be a different group.

Whether or not they believed themselves to be a different group is not a issue.

The issue is that ancestrally Jews were discriminated against because of their culture and because of their ethnicity, not because they were or were not advocates of a certain religious tenet.

Antonin Scalia:

When you say were perceived to be, you don’t mean by the people who committed the acts.

Caroline Mitchell:

That is correct, Your Honor.

Antonin Scalia:

You mean by society.

Caroline Mitchell:

By society at large.

Not a majority definition and not a minority definition, but by members of the society at large.

Antonin Scalia:

You wouldn’t have us look to modern dictionaries to figure out what is a race.

You would have us look to old dictionaries.

Caroline Mitchell:

Your Honor, I suggest that looking to any dictionary is going to give you 50 different answers to the same question.

Antonin Scalia:

How do we find out whether society at large considered… I mean I think Jews is probably an easy question, but I don’t know.

Swedes.

How do I figure out whether society at large considered them a separate race in your sense?

Caroline Mitchell:

In 1866 the answer is very clear.

In 1987 the answer may not be so clear.

But if one uses the ancestral theory of discrimination Swedes are of a separate ancestry.

If they are discriminated against because of that ancestry then they have a right under 1981 to redress.

Antonin Scalia:

Now, your question regarding Justice Marshall’s father leads me to believe you were here during the earlier argument.

Caroline Mitchell:

That is correct, I was.

Antonin Scalia:

What would your answer have been to the questions I was asking about whether the intent to discriminate has to be specifically directed to a dislike of the race as opposed to a dislike of some characteristic which one thinks people that race or of that whatever you want to call the group happen to share?

Caroline Mitchell:

Your Honor, my answer to that question is that if a group such as Jews is discriminated against because of their ancestral characteristics and beliefs, they have a right under 1982.

Caroline Mitchell:

It is not founded on their religious beliefs.

It is not a measure of whether subjectively the Neonazis believe that the Jews because of their religion deserve to be discriminated against.

Our test-

Antonin Scalia:

What about the question I asked whether if I think Italians or French or you pick the racial group, I think they are sloppy and therefore I don’t want to… I will not rent an apartment.

Caroline Mitchell:

-Then I will sue you under Section 1982 and under Section 1981.

Antonin Scalia:

It is not that I hate the French.

I have nothing against the race.

I just don’t think they make good tenants.

Caroline Mitchell:

I believe that-

Antonin Scalia:

That is enough.

Caroline Mitchell:

-you have discriminated, and it is covered under Section 1981.

Byron R. White:

But you would give a remedy to some person who discriminated against someone because he was from Sweden but the person says, well, I know the Swedes are not of a different race at all.

I haven’t any racial animus against them.

I just don’t like Swedes.

Caroline Mitchell:

Your Honor, whether the belief is mistaken is not at issue.

Whether they were right or wrong in believing a certain ancestry to be-

Byron R. White:

You would go back and say, well, just… you would say that, well, if that plaintiff was well advised he would know that he really is discriminating on a racial basis within the meaning of the statute.

Caroline Mitchell:

-That is correct.

That is correct.

We cannot use the subjective intent of the parties as our touchstones of whether there has been discrimination if we have a smart Neonazi Party they say, oh, we don’t view Jews as a separate race and we are discriminating against them because of their religion and therefore we are not going to suffer an award in the Federal District Court of attorney fees and punitive damages.

We are going to have our state remedy.

Byron R. White:

Of course, it could be that there is racial retaliation or religious, violent religious conflict.

That could be, but that wouldn’t be covered by 1982.

Caroline Mitchell:

Well, it would be covered by 1981 or 1982 if the belief was an ancestral belief that Arabs are terrorists or that Jews are inferior.

It is not directed at them because of their Moslem faith or their Jewish faith.

It is directed at them because of what society perceives to be a difference between their culture and the cultures of other people.

I would like to address one question that Justice Stevens raised in the Shaare Tefila argument.

You asked, did the people who passed 1982 think Jews were a separate race.

Our answer to the questions is yes, they did believe that Jews and Swedes and Irish and Germans were a separate race, and we advocate here today that the 1866 Act was intended to cover that perception, that ancestral use of the term.

With the Court’s permission, I would like to move to the Chevron aspect of my argument.

Caroline Mitchell:

My argument there is, first of all, that the Third Circuit was correct in holding that under Chevron considerations, the claim under 1981 was timely filed.

I will call to the Court’s attention one fact.

The author of the decision in the Third Circuit, Judge Stapleton, was also the author of a 1977 case, Davis, which was the case relied upon by litigants to believe that there was a six-year statute in the Third Circuit.

We believe that Judge Stapleton correctly interprets the law of the circuit in that regard.

Should, however, this Court find that it would be appropriate to apply a two-year statute of limitations to 1981 under Wilson, we ask that this Court, remand our case to the district for consideration of the equitable estoppel arguments.

These arguments were raised both before the District Court and before the Circuit, but need not have been reached by either of those courts in reaching their determination.

Thank you.

William H. Rehnquist:

Thank you, Ms. Mitchell.

Mr. Fisfis, you have six minutes remaining.

Nick S. Fisfis:

If the Court please, I am just going to take about 30 seconds only to reply to the last matter on the remand, and may I suggest that if the court looks at the chronology of events the discharge of the plaintiff was in May of 1979, well before the statute of limitations… the two-year Pennsylvania statute of limitations would have run if that one is the… if the Court treats it as retroactive, and therefore anything that anybody may have said to the plaintiff about not doing anything and going through internal processes would not really have made any difference, because he still had plenty of time to file within the two-year period, so there is no basis for equitable estoppel in this situation, even if you believe the allegations in his affidavit that certain statements were made.

Thank you.

William H. Rehnquist:

Thank you, Mr. Fisfis.

The case is submitted.

We will resume at 1:00 o’clock.