SAINT FRANCIS COLLEGE v. AL-KHAZRAJI, 481 U.S. 604 (1987) 107 S.Ct. 2022
SAINT FRANCIS COLLEGE ET AL. v. AL-KHAZRAJI, AKA ALLAN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 85-2169.
Argued February 25, 1987
Decided May 18, 1987
Respondent professor, a United States citizen born in Iraq, filed suit in
Federal District Court against petitioners, his former employer and its
tenure committee, alleging that, by denying him tenure nearly three
years before, they had discriminated against him on the basis of his
Arabian race in violation of 42 U.S.C. § 1981. The court held that
the claim was not barred under the Pennsylvania 6-year statute of
limitations, but granted summary judgment for petitioners upon finding
that § 1981 does not reach discrimination claims based on Arabian
ancestry. The Court of Appeals for the Third Circuit acknowledged that
its recent Goodman case had overruled its earlier decisions by
applying Pennsylvania's 2-year personal injury statute of limitations
rather than the 6-year period in § 1981 cases, but ruled that
respondent's claim was not time barred since Goodman should not
be applied retroactively under Chevron Oil Co. v. Huson,
404 U.S. 97. However, the court reversed the District Court on the
merits, holding that respondent had properly alleged racial
discrimination in that, although Arabs are Caucasians under current
racial classifications, Congress, when it passed what is now § 1981,
did not limit its protections to those who today would be considered
members of a race different from the defendant's. The court said that,
at a minimum, § 1981 reaches discrimination directed against an
individual because he or she is genetically part of an ethnically and
physiognomically distinctive subgrouping of homo sapiens. Because
the record was insufficient to determine whether respondent had been
subjected to the sort of prejudice that § 1981 would redress, the
case was remanded.
Held:
1. Respondent's claim was not time barred. When respondent filed
suit, it was clearly established in the Third Circuit that a § 1981
plaintiff had six years to bring an action. The Court of Appeals
correctly held that its Goodman decision should not be applied
retroactively, since Chevron indicated that it is manifestly
inequitable to apply statute of limitations decisions retroactively when
they overrule clearly established Circuit precedent on which the
complaining party was entitled to rely. Pp. 608-609.
Page 605
2. A person of Arabian ancestry may be protected from racial
discrimination under § 1981. The Court of Appeals properly rejected
petitioners' contention that, as a Caucasian, respondent cannot allege
the type of discrimination that § 1981 forbids since that section
does not encompass claims of discrimination by one Caucasian against
another. That position assumes that all those who might be deemed
Caucasians today were thought to be of the same race when § 1981
became law. In fact, 19th-century sources commonly described "race" in
terms of particular ethnic groups, including Arabs, and do not support
the claim that Arabs and other present-day "Caucasians" were then
considered to be a single race. Moreover, § 1981's legislative
history indicates that Congress intended to protect identifiable
classes of persons who are subjected to intentional discrimination
solely because of their ancestry or ethnic characteristics. However, a
distinctive physiognomy is not essential to qualify for § 1981
protection. Thus, if respondent can prove that he was subjected to
intentional discrimination based on the fact that he was born an Arab,
rather than solely on the place or nation of his origin or his
religion, he will have made out a § 1981 case. Pp. 609-613.
784 F.2d 505, affirmed.
WHITE, J., delivered the opinion for a unanimous Court. BRENNAN, J.,
filed a concurring opinion, post, p. 614.
Nick S. Fisfis argued the cause and filed a brief for
petitioners.
Caroline Mitchell argued the cause for respondent. With
her on the brief were Julius LeVonne Chambers and Eric
Schnapper.[fn*]
[fn*] Page 605
Robert E. Williams and Douglas S. McDowell filed a brief for the
Equal Employment Advisory Council as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American-Arab
Anti-Discrimination Committee by James G. Abourezk; for the Anti-Defamation
League of B'nai B'rith et al. by Gregg H. Levy, Mitchell F.
Dolin, Meyer Eisenberg, David Brody, Edward N. Leavy, Steven M. Freeman,
Jill L. Kahn, Robert S. Rifkind, Samuel Rabinove, Richard T.
Foltin, Eileen Kaufman, Harold R. Tyler, James Robertson, Norman
Redlich, William L. Robinson, Judith A. Winston, Joseph A. Morris, and
Grover G. Hankins; and for the Mexican American Legal Defense and
Educational Fund et al. by Barry Sullivan, William D. Snapp, Antonia
Hernandez, E. Richard Larson, and Kenneth Kimerling.
Page 606
JUSTICE WHITE delivered the opinion of the Court.
Respondent, a citizen of the United States born in Iraq,
was an associate professor at St. Francis College, one of the
petitioners here. In January 1978, he applied for tenure; the
Board of Trustees denied his request on February 23, 1978.
He accepted a 1-year, nonrenewable contract and sought administrative
reconsideration of the tenure decision, which
was denied on February 6, 1979. He worked his last day at
the college on May 26, 1979. In June 1979, he filed complaints
with the Pennsylvania Human Relations Commission
and the Equal Employment Opportunities Commission. The
state agency dismissed his claim and the EEOC issued a
right-to-sue letter on August 6, 1980.
On October 30, 1980, respondent filed a pro se complaint in
the District Court alleging a violation of Title VII of the
Civil Rights Act of 1964 and claiming discrimination based on
national origin, religion, and/or race. Amended complaints
were filed, adding claims under 42 U.S.C. § 1981, 1983,
1985(3), 1986, and state law. The District Court dismissed
the §§ 1986 and 1985(3) and Title VII claims as untimely but
held that the §§ 1981 and 1983 claims were not barred by the
Pennsylvania 6-year statute of limitations. The court at that
time also ruled that because the complaint alleged denial of
tenure because respondent was of the Arabian race, an action
under § 1981 could be maintained. Defendants' motion for
summary judgment came up before a different judge, who
construed the pleadings as asserting only discrimination on
the basis of national origin and religion, which § 1981 did not
cover. Even if racial discrimination was deemed to have
been alleged, the District Court ruled that § 1981 does not
reach claims of discrimination based on Arabian ancestry.[fn1]
The Court of Appeals rejected petitioners' claim that the
§ 1981 claim had not been timely filed. Under the Court of
Appeals' holding in Goodman v. Lukens Steel Co., 777 F.2d 113
Page 607
(1985), that the Pennsylvania 2-year statute of limitations
governed § 1981 cases, respondent's suit would have been
barred. The Court of Appeals, however, relying on Chevron
Oil Co. v. Huson, 404 U.S. 97 (1971), held that Goodman
should not be retroactively applied and that this suit was
timely under its pre-Goodman cases which had borrowed the
State's 6-year statute.
Reaching the merits, the Court of Appeals held that respondent
had alleged discrimination based on race and that
although under current racial classifications Arabs are Caucasians,
respondent could maintain his § 1981 claim.[fn2] Congress,
when it passed what is now § 1981, had not limited its
protections to those who today would be considered members
of a race different from the race of the defendant. Rather,
the legislative history of the section indicated that Congress
intended to embrace "at the least, membership in a group
that is ethnically and physiognomically distinctive." 784 F.2d 505,
517 (1986). Section 1981, "at a minimum," reaches
"discrimination directed against an individual because he or
she is genetically part of an ethnically and physiognomically
distinctive sub-grouping of homo sapiens." Ibid. Because
respondent had not had full discovery and the record was not
sufficient to determine whether he had been subjected to the
sort of prejudice § 1981 would redress, respondent was to be
given the opportunity to prove his case.[fn3]
We granted certiorari, 479 U.S. 812 (1986), limited to the
statute of limitations issue and the question whether a person
of Arabian ancestry was protected from racial discrimination
under § 1981, and now affirm the judgment of the Court of
Appeals.
Page 608
I
We agree with the Court of Appeals that respondent's
claim was not time barred. Wilson v. Garcia, 471 U.S. 261
(1985), required that in selecting the applicable state statute
of limitations in § 1983 cases, the lower federal courts should
choose the state statute applicable to other personal injury
torts. Thereafter, the Third Circuit in Goodman held that
Wilson applies to § 1981 cases as well and that the Pennsylvania
2-year statute should apply. The Court of Appeals in
this case, however, held that when respondent filed his suit,
which was prior to Wilson v. Garcia, it was clearly established
in the Third Circuit that a § 1981 plaintiff had six years
to bring an action and that Goodman should not be applied
retroactively to bar respondent's suit.
Insofar as what the prevailing law was in the Third Circuit,
we have no reason to disagree with the Court of Appeals.
Under controlling precedent in that Circuit, respondent had
six years to file his suit, and it was filed well within that time.
See 784 F.2d, at 512-513. We also assume but do not decide
that Wilson v. Garcia controls the selection of the applicable
state statute of limitations in § 1981 cases. The Court of Appeals,
however, correctly held that its decision in Goodman
should not be retroactively applied to bar respondent's action
in this case. The usual rule is that federal cases should be
decided in accordance with the law existing at the time of decision.
Gulf Offshore Co. v. Mobile Oil Corp., 453 U.S. 473,
486, n. 16 (1981); Thorpe v. Durham Housing Authority,
393 U.S. 268, 281 (1969); United States v. Schooner Peggy, 1
Cranch 103, 110 (1801). But Chevron Oil Co. v. Huson,
supra, counsels against retroactive application of statute of
limitations decisions in certain circumstances. There, the
Court held that its decision specifying the applicable state
statute of limitations should be applied only prospectively because
it overruled clearly established Circuit precedent on
which the complaining party was entitled to rely, because
retroactive application would be inconsistent with the purpose
Page 609
of the underlying substantive statute, and because such
application would be manifestly inequitable. The Court of
Appeals found these same factors were present in this case
and foreclosed retroactive application of its decision in Goodman.
We perceive no good reason for not applying Chevron
where Wilson has required a Court of Appeals to overrule its
prior cases. Nor has petitioner persuaded us that there was
any error in the application of Chevron in the circumstances
existing in this case.
II
Section 1981 provides:
"All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws and
proceedings for the security of persons and property as
is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions
of every kind, and to no other."
Although § 1981 does not itself use the word "race," the
Court has construed the section to forbid all "racial" discrimination
in the making of private as well as public contracts.
Runyon v. McCrary, 427 U.S. 160, 168, 174-175
(1976). Petitioner college, although a private institution,
was therefore subject to this statutory command. There is
no disagreement among the parties on these propositions.
The issue is whether respondent has alleged racial discrimination
within the meaning of § 1981.
Petitioners contend that respondent is a Caucasian and
cannot allege the kind of discrimination § 1981 forbids. Concededly,
McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976), held that white persons could maintain
a § 1981 suit; but that suit involved alleged discrimination
against a white person in favor of a black, and petitioner submits
that the section does not encompass claims of discrimination
Page 610
by one Caucasian against another. We are quite sure
that the Court of Appeals properly rejected this position.
Petitioner's submission rests on the assumption that all
those who might be deemed Caucasians today were thought
to be of the same race when § 1981 became law in the 19th
century; and it may be that a variety of ethnic groups, including
Arabs, are now considered to be within the Caucasian
race.[fn4] The understanding of "race" in the 19th century,
however, was different. Plainly, all those who might be
deemed Caucasian today were not thought to be of the same
race at the time § 1981 became law.
In the middle years of the 19th century, dictionaries commonly
referred to race as a "continued series of descendants
from a parent who is called the stock," N. Webster, An
American Dictionary of the English Language 666 (New
Page 611
York 1830) (emphasis in original), "[t]he lineage of a family,"
2 N. Webster, A Dictionary of the English Language 411
(New Haven 1841), or "descendants of a common ancestor,"
J. Donald, Chambers' Etymological Dictionary of the English
Language 415 (London 1871). The 1887 edition of Webster's
expanded the definition somewhat: "The descendants of a
common ancestor; a family, tribe, people or nation, believed
or presumed to belong to the same stock." N. Webster, Dictionary
of the English Language 589 (W. Wheeler ed. 1887).
It was not until the 20th century that dictionaries began referring
to the Caucasian, Mongolian, and Negro races, 8 The
Century Dictionary and Cyclopedia 4926 (1911), or to race as
involving divisions of mankind based upon different physical
characteristics. Webster's Collegiate Dictionary 794 (3d ed.
1916). Even so, modern dictionaries still include among the
definitions of race "a family, tribe, people, or nation belonging
to the same stock." Webster's Third New International
Dictionary 1870 (1971); Webster's Ninth New Collegiate Dictionary
969 (1986).
Encyclopedias of the 19th century also described race in
terms of ethnic groups, which is a narrower concept of race
than petitioners urge. Encyclopedia Americana in 1858, for
example, referred to various races such as Finns, vol. 5,
p. 123, gypsies, 6 id., at 123, Basques, 1 id., at 602, and Hebrews,
6 id., at 209. The 1863 version of the New American
Cyclopaedia divided the Arabs into a number of subsidiary
races, vol. 1, p. 739; represented the Hebrews as of the Semitic
race, 9 id., at 27, and identified numerous other groups
as constituting races, including Swedes, 15 id., at 216, Norwegians,
12 id., at 410, Germans, 8 id., at 200, Greeks, 8 id.,
at 438, Finns, 7 id., at 513, Italians, 9 id., at 644-645 (referring
to mixture of different races), Spanish, 14 id., at 804,
Mongolians, 11 id., at 651, Russians, 14 id., at 226, and the
like. The Ninth edition of the Encyclopedia Britannica also
referred to Arabs, vol. 2, p. 245 (1878), Jews, 13 id., at 685
(1881), and other ethnic groups such as Germans, 10 id., at
Page 612
473 (1879), Hungarians, 12 id., at 365 (1880), and Greeks, 11
id., at 83 (1880), as separate races.
These dictionary and encyclopedic sources are somewhat
diverse, but it is clear that they do not support the claim that
for the purposes of § 1981, Arabs, Englishmen, Germans, and
certain other ethnic groups are to be considered a single race.
We would expect the legislative history of § 1981, which the
Court held in Runyon v. McCrary had its source in the Civil
Rights Act of 1866, 14 Stat. 27, as well as the Voting Rights
Act of 1870, 16 Stat. 140, 144, to reflect this common understanding,
which it surely does. The debates are replete with
references to the Scandinavian races, Cong. Globe, 39th
Cong., 1st Sess., 499 (1866) (remarks of Sen. Cowan), as well
as the Chinese, id., at 523 (remarks of Sen. Davis), Latin,
id., at 238 (remarks of Rep. Kasson during debate of home
rule for the District of Columbia), Spanish, id., at 251 (remarks
of Sen. Davis during debate of District of Columbia
suffrage), and Anglo-Saxon races, id., at 542 (remarks of
Rep. Dawson). Jews, ibid., Mexicans, see ibid. (remarks of
Rep. Dawson), blacks, passim, and Mongolians, id., at 498
(remarks of Sen. Cowan), were similarly categorized. Gypsies
were referred to as a race. Ibid. (remarks of Sen.
Cowan). Likewise, the Germans:
"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
ever 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." Id., at 1294 (remarks of Sen. Shellabarger).
There was a reference to the Caucasian race, but it appears
to have been referring to people of European ancestry. Id.,
at 523 (remarks of Sen. Davis).
The history of the 1870 Act reflects similar understanding
of what groups Congress intended to protect from intentional
Page 613
discrimination. It is clear, for example, that the civil rights
sections of the 1870 Act provided protection for immigrant
groups such as the Chinese. This view was expressed in the
Senate. Cong. Globe, 41st Cong., 2d Sess., 1536, 3658, 3808
(1870). In the House, Representative Bingham described
§ 16 of the Act, part of the authority for § 1981, as declaring
"that the States shall not hereafter discriminate against the
immigrant from China and in favor of the immigrant from
Prussia, nor against the immigrant from France and in favor
of the immigrant from Ireland." Id., at 3871.
Based on the history of § 1981, we have little trouble in concluding
that Congress intended to protect from discrimination
identifiable classes of persons who are subjected to
intentional discrimination solely because of their ancestry or
ethnic characteristics. Such discrimination is racial discrimination
that Congress intended § 1981 to forbid, whether
or not it would be classified as racial in terms of modern scientific
theory.[fn5] The Court of Appeals was thus quite right
in holding that § 1981, "at a minimum," reaches discrimination
against an individual "because he or she is genetically
part of an ethnically and physiognomically distinctive subgrouping
of homo sapiens." It is clear from our holding,
however, that a distinctive physiognomy is not essential to
qualify for § 1981 protection. If respondent on remand can
prove that he was subjected to intentional discrimination
based on the fact that he was born an Arab, rather than
solely on the place or nation of his origin, or his religion, he
will have made out a case under § 1981.
The judgment of the Court of Appeals is accordingly
affirmed.
It is so ordered.
[fn1] Page 606
The § 1983 claim was dismissed for want of state action. The pendent
state claims were also dismissed.
[fn2] Page 607
The Court of Appeals thus rejected petitioners' claim that
respondent's complaint alleged only national origin and religious
discrimination, assertedly not reached by § 1981.
[fn3] Page 607
The Court of Appeals also held that the individual members of the
tenure committee were subject to liability under § 1981. The District
Court was also to reconsider its dismissal of the pendent state claims.
[fn4] Page 610
There is a common popular understanding that there are three major
human races  Caucasoid, Mongoloid, and Negroid. Many modern biologists
and anthropologists, however, criticize racial classifications as arbitrary
and of little use in understanding the variability of human beings. It
is said that genetically homogeneous populations do not exist and traits are
not discontinuous between populations; therefore, a population can only be
described in terms of relative frequencies of various traits. Clear-cut
categories do not exist. The particular traits which have generally been
chosen to characterize races have been criticized as having little
biological significance. It has been found that differences between
individuals of the same race are often greater than the differences between
the "average" individuals of different races. These observations and others
have led some, but not all, scientists to conclude that racial
classifications are for the most part sociopolitical, rather than
biological, in nature. S. Molnar, Human Variation (2d ed. 1983); S. Gould,
The Mismeasure of Man (1981); M. Banton & J. Harwood, The Race Concept
(1975); A. Montagu, Man's Most Dangerous Myth (1974); A. Montagu, Statement
on Race (3d ed. 1972); Science and the Concept of Race (M. Mead, T.
Dobzhansky, E. Tobach, & R. Light eds. 1968); A. Montagu, The Concept of
Race (1964); R. Benedict, Race and Racism (1942); Littlefield, Lieberman, &
Reynolds, Redefining Race: The Potential Demise of a Concept in Physical
Anthropology, 23 Current Anthropology 641 (1982); Biological Aspects of
Race, 17 Int'l Soc. Sci. J. 71 (1965); Washburn, The Study of Race, 65
American Anthropologist 521 (1963).
[fn5] Page 613
We note that under prior cases, discrimination by States on the basis
of ancestry violates the Equal Protection Clause of the Fourteenth
Amendment. Hernandez v. Texas, 347 U.S. 475, 479 (1954);
Oyama v. California, 332 U.S. 633, 646 (1948); Hirabayashi
v. United States, 320 U.S. 81, 100 (1943). See also Hurd
v. Hodge, 334 U.S. 24, 32 (1948).
Page 614
JUSTICE BRENNAN, concurring.
Pernicious distinctions among individuals based solely on
their ancestry are antithetical to the doctrine of equality
upon which this Nation is founded. Today the Court upholds
Congress' desire to rid the Nation of such arbitrary and
invidious discrimination, and I concur in its opinion and
judgment. I write separately only to point out that the line
between discrimination based on "ancestry or ethnic characteristics,"
ante, at 613, and discrimination based on "place or
nation of . . . origin," ibid., is not a bright one. It is true
that one's ancestry  the ethnic group from which an individual
and his or her ancestors are descended  is not necessarily
the same as one's national origin  the country "where a person
was born, or, more broadly, the country from which his
or her ancestors came." Espinoza v. Farah Manufacturing
Co., 414 U.S. 86, 88 (1973) (emphasis added). Often, however,
the two are identical as a factual matter: one was born
in the nation whose primary stock is one's own ethnic group.
Moreover, national origin claims have been treated as ancestry
or ethnicity claims in some circumstances. For example,
in the Title VII context, the terms overlap as a legal matter.
See 29 C.F.R. § 1606.1 (1986) (emphasis added) (national origin
discrimination "includ[es], but [is] not limited to, the denial of
equal employment opportunity because of an individual's, or
his or her ancestor's, place of origin; or because an individual
has the physical, cultural, or linguistic characteristics of a national
origin group"); Espinoza, supra, at 89 (the deletion of
the word ancestry from the final version of § 703 of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(e), "was
not intended as a material change, . . . suggesting that the
terms `national origin' and `ancestry' were considered synonymous").
I therefore read the Court's opinion to state only
that discrimination based on birthplace alone is insufficient to
state a claim under § 1981.
Page 615
