National Origin Discrimination Against Americans of Southern and Eastern European Ancestry: A Review of the Legal History and Judicial Interpretations
Review of the Legal Histor y and Judicial National Origin Discrimination Against Americans of Southern and Eastern European Ancestr y: A
Rachel Rossoni Munafo
Follow this and additional works at: http://scholarship.law.stjohns.edu/tcl Part of the Constitutional Law Commons, and the Fourteenth Amendment Commons Recommended Citation
Since the adoption of the thirteenth and fourteenth amendments to
the United States Constitution, numerous attempts have been made to
safeguard civil rights through legislation. Although legislators often have
expressed a desire to protect persons of all ethnic persuasions from the
effects of discrimination, it is uncertain to what degree civil rights
legislation has benefited Americans of southern and eastern European ancestry.
For example, the Civil War Statutes, passed as the Civil Rights Acts of
1866,- 1870,2 18711 and 1875,1 were enacted prior to the mass immigration
of southern and eastern Europeans to the United States. The breadth of
coverage extended by these Acts therefore is unclear. Current legislation,
found in the Civil Rights Act of 1964, has failed in application to remove
this ambiguity. Notwithstanding this Act's clear prohibition of
discrimination based on "race, color, religion, sex, or national origin," 5 administrative
• Copyright, Rachel Rossoni Munafo, 1979.
agencies such as the Equal Employment Opportunity Commission
(EEOC) collect data only on specific racialgroups, namely, Blacks,
Orientals, American Indians and Spanish surnamed Americans. White ethnic
groups are considered "nonminorities" and therefore are categorized with
the "white majority."
The purpose of this paper is to examine the extent to wh;ch Americans
of southern and eastern European ancestry are protected from
discrimination by civil rights legislation. First, national origin discrimination will be
viewed in an historical perspective. This review will be followed by a
discussion of the history of legislation pertaining to national origin and an
analysis of judicial interpretations concerning national origin. The paper
will conclude with reflections on the adequacy of present law and
suggestions for legislative change.
NATIONAL ORIGIN DISCRIMINATION: AN HISTORICAL PERSPECTIVE
A. Past DiscriminationAgainst Americans of Southern and EasternEu
During the seventeenh and eighteenth centuries, Anglo-Saxon
Protestants dominated the establishment of the legal, political and social
institutions of the United States. It was not until the nineteenth century that
other groups from diverse cultures began to arrive in large numbers.' Early
immigrants, all from northwestern Europe, included Germans,
Scandinavians and the Irish. Assimilation into Anglo-American society was
relatively easy for these immigrants, because they closely resembled the
English in cultural background.' Although adjustment posed few problems for
the new Americans, religious differences gave rise to considerable social
conflict. Immigrants, such as the Irish, were Catholic, and
ProtestantAmericans were fiercely anti-Catholic. Extreme Protestant-Americans
expressed their hostility toward Catholicism in church burnings, riots and
other forms of physical violence, in addition to the more covert forms of
prejudice. Historian John Higham has suggested that anti-Catholicism
was the most powerful of the antiforeign traditions in the United States
during the mid-nineteenth century. 8
Beginning in the 1880's, the complexion and flow of immigration to
the United States underwent dramatic change. This "new" immigration
was comprised almost entirely of southern and eastern Europeans of the
Catholic faith, and most were poor, illiterate peasants. Most abundant
among these new immigrants were the southern Italians, who looked
strikingly different from the "old" immigrants. While the earlier immigrants
* See generally J. HIGHAM, STRANGERS IN THE LAND (2d ed. 1963).
S. KANSAS, NEW IMMIGRATION LAW EFEcTvE JULYI1, 1968, 316-17 (1967); M. NOVAK, THE
RISE OF THE UNMELTABLE ETHNICS 72-11
8 See J. HIGHAM, supranote 6, at 5. See generallyA. GREELEY, THAT MOST DISTRESSFUL NATION
from northwestern Europe generally were blond and tall, the southern
Italian tended to be dark and short. Despite their uncharacteristic physical
appearance, the "new" immigrants arrived in such large numbers that by
1914 they outnumbered those who had come from northwestern Europe.
As a result of the mass immigration of poor, foreign-speaking persons,
the urban slums of the northeastern United States became congested. A
national social problem developed, and Anglo-American hostility toward
immigrants of southern and eastern Europe intensified. 0 In 1891, for
example, eleven Sicilian immigrants were lynched in New Orleans." Prominent
Anglo-Americans 2 adopted racist theories holding that the Mediterranean
race was inferior to the Nordic and Aryan races and that southeastern
Europeans eventually would "mongrelize" the Anglo-American culture.
Indeed, it was believed that it would be impossible to Americanize these
Mediterranean people. 3
The Dillingham Commission, which investigated the problems caused
by immigration, concluded that Italian immigrants had innate criminal
propensities and that Polish immigrants were predisposed toward
instability and personality disorder. Responding to these racist theories, Congress
passed the Immigration Act of 1924," which created nationality quotas. It
seems that the purpose of these quotas was to discourage immigration from
southeastern Europe and to encourage it from northwestern Europe. 5
Congress revised the immigration laws in 1952 fiut, significantly, preserved the
national origins quota system. This revision, known as the
McCarranWalter Act," was vetoed by President Truman on the ground that it
discriminated against immigrants from southern and eastern Europe. In
vetoing this Act, the President stated:
The idea behind this discriminatory policy was, to put it boldly, that
Americans with English or Irish names were better people and better citizens than
Americans with Italian or Greek or Polish names . . . . Such a concept is
utterly unworthy of our traditions and our ideals. 7
Despite Truman's objections to the Act, Congress overrode his veto."
In 1957, five years after the passage of the McCarran-Walter Act, the
then Massachusetts Senator, John F. Kennedy, proposed the abolishment
of the national origins quota law. Failing in this effort, Kennedy renewed
his proposal in 1963, this time as President of the United States.
Opposition to this recommendation persisted, however, and was especially
evident among Senators representing southern states." The late President's
dream became a reality on October 3, 1965, when Congress abolished the
national origins quota system as a memorial to the slain President.0
B. Present DiscriminationAgainst Americans of Southern and Eastern
Many sociologists contend that Anglo-American discrimination
against white ethnics still exists and in part accounts for the "ethnic
revival" of the 1960's and 70's. Andrew M. Greeley, a sociologist who is
particularly outspoken on the issue of ethnicity, maintains that
[the] stereotype [of the white ethnics] and the racism that produced it
have never been critically examined by the nation's cultural and intellectual
elite . . . . [T]he Polish or Irish Archie Bunker-so dearly loved by national
media-is a descendant of the racially inferior immigrant described by the
Notwithstanding the belief among academics that white ethnics
continue to suffer from discrimination, proof of discrimination is made very
difficult by the lack of data on ethnicity. The United States Census, for
example, counts Blacks, American Indians, Chinese, Japanese and other
races. It does not record ethnic origin, however, except for residents born
abroad and their children. Since ethnicity is recorded only for two
generations, third and subsequent generation Americans of southern and eastern
European ancestry are classified solely according to race. As a result, the
federal bureaucracy lumps the grandchildren and great-grandchildren of
the Italian, Greek and Polish immigrants with Anglo-Americans into the
so-called "white majority," which removes them from "minority" or
"ethnic" status."2 The assumption behind such a classification is that
' j. KENNEDY, A NATION OF IMMIGRANTS 78 (1964).
" See 66 Stat. 281-82 (1952).
' See note 54 infra.
= Act of Oct. 3, 1965, Pub. L. No. 89-236, § 2,79 Stat. 911 (codified at 8 U.S.C. § 1152 (1976)).
" Greeley, After Ellis Island, HARPER'S, Nov., 1978 at 30.
This will change with the 1980 Census, which will include a question on ethnic identity.
The "ethnic revival" appears to have had an impact on some governmental agencies, such
as the Census Bureau. But, as this paper will discuss, other agencies such as EEOC continue
white ethnic groups lose their ancestral culture and become assimilated
"Americans" by the third generation. It is submitted that this notion of
assimilation has resulted from a misconception of the process by which
immigrants are "assimilated" into American life. Indeed, several theories
of this process have evolved and may help account for the failure of
governmental action to protect the civil rights of the white ethnic groups and end
national origin discrimination.
In his book, Assimilation in American Life, sociologist Milton Gordon
discusses three theories of assimilation: Anglo-conformity, the melting pot
and cultural pluralism.13 Anglo-conformity refers to the "Americanization"
process, which demands complete renunciation of the immigrant's
ancestral culture in favor of the behavior and values of the Anglo-Saxon core
group. According to Gordon, this theory, which disfavors cultural diversity,
has been the prevalent ideology of assimilation in American history.2'
Anglo-conformity involves two kinds of assimilation: acculturation and
structural assimilation. Acculturation is the process by which ethnic
groups adopt the lifestyle of the new society, including its language and
dress. By comparison, structural assimilation involves a more complicated
process, by which ethnic groups eventually relate to members of other
ethnic groups without regard to ethnic differences, as, for example, in
friendship and family formation. Gordon maintains that ethnic groups
such as Americans of southern and eastern European ancestry for the most
part have achieved acculturation but not structural assimilation, since
distinctive ethnic identities persist well beyond the second generation.
The melting pot theory posits a blending of the cultures of the
AngloSaxons with those of other immigrant groups into a "new" American
culture. As Gordon and other sociologists have observed, however,
AngloAmericans expected that the cultures of the immigrants would melt
completely into the Anglo-American culture, a view that is indistinguishable
from that of Anglo conformity.
A third theory of assimilation, cultural pluralism, stresses the
importance of diversity in society and the value of maintaining many cultures
as a means of enriching a society. Cultural pluralism envisions a society
in which ethnic groups retain a part of their cultural identities but also are
integrated into society. Thus, an Italian American, for example, has a dual
identity. As an American, he or she is integrated into the social, economic
and political institutions of American society, but as an Italian, he or she
retains many Italian cultural values and attitudes toward such institutions
as family, religion, work, child-rearing and recreation. Cultural pluralism
therefore removes the stigma which Anglo conformity attaches to being an
to define "ethnic" and "minority" in such a way as to exclude Americans of southern and
eastern European ancestry.
2 See M. GORDON, ASSIMILATION IN AMERICAN Lin 85 (1964).
24 Id. at 89.
In recent years, the concept of cultural pluralism has assumed a
significant role in the shaping of public policy but only as it relates to certain
racial minorities. It now is accepted that Blacks, Hispanics, Orientals and
American Indians cannot assimilate totally into the Anglo-American mold,
because racial discrimination has obstructed total integration. With the
exception of the Japanese," total assimilation of different races has failed.
In the case of the white ethnic minorities, however, it is assumed that
assimilation has been achieved and therefore that members of these groups
now fall within the "white majority." Gordon and other sociologists have
suggested that this is a misconception."8 Americans of southern and eastern
European heritage have failed to assimilate the American culture totally
not only because their cultures are so dissimilar from the Anglo-Protestant
culture, but also because national origin and religious discrimination have
obstructed total integration. Like the racial minorities, the white ethnic
minorities have not "melted" into Anglo-America as expected.
Nevertheless, public policy continues to ignore this reality, and ethnicity is now
officially synonymous with skin color. A person is an "ethnic" only if his
skin is not white. Thus, Greeks, Italians, Poles and Slavs are not
considered ethnics and are classified as "nonminorities" by governmental
agencies such as the Census Bureau, the Department of Health, Education and
Welfare, the Department of Labor, and the EEOC. 7
The government's definition of "minority" has created serious
problems for the white ethnic groups. Since white ethnics are classified as
nonminorities, no agency compiles official data concerning them. From a
5 Japanese Americans have a median family income that is $3,000 higher than that of the
average American family. They are more likely to hold professional occupations than other
Americans, and their level of education is higher than that of any other white or non-white
group. This is so despite systematic discrimination by American society which included the
relocation of all Japanese Americans into detention camps during World War II. Montero,
For Japanese-Americans,Erosion, N.Y. Times, Dec. 4, 1978, § 1, at 21, col. 2.
0 See generally N. GLAZER & D. MOYNIHAN, BEYOND THE MELTING PoT (2d ed. 1970); A.
GREEiEY, ETHNicrrY IN THE UNITED STATES (1974); A. GREELEY, WHY CAN'T THEY BE LIKE Us?
(1971); W. NEWMAN, AMERICAN PLURALISM (1973); M. NOVAK, THE RISE OF THE UNMELTABLE
" A review of the regulations defining the approach to minorities taken by various agencies
in the federal government reveals that within the government, the term "minority" is
primarily a racial classification. For example, the General Services Administration, in its
government-wide procurement regulations, defines a minority business enterprise as one in
which "minority group members" own at least a 50% interest. For the purpose of making this
determination, the term "minority group members" is defined as including "Negroes,
Spanish-speaking American persons, American- Orientals, American-Indians,
AmericanEskimos, and American-Aleuts." 41 C.F.R. § 1-1.1303 (1978). These guidelines have been
implemented by specific government agencies. See 41 C.F.R. § 24-1.715-1 (1978) (H.U.D.);
32 C.F.R. § 7-104.36 (1976) (National Defense). Similar definitions are used by agencies to
determine which groups are minorities in awarding federal contracts, see 41 C.F.R. § 60-4.3(a)
(1978), making grants to institutions engaged in biomedical research, see 42 C.F.R. § 52c.2(d)
(1978), and charting compliance with the Equal Employment Opportunity Act of 1972 (Pub.
L. No. 92-261, 86 Stat. 103), see U.S. Civil Service Commission, Equal Employment
Opportunity Statistics vi (1977).
statistical standpoint, therefore, white ethnics are virtually invisible. As a
result of this classification scheme, legislators and bureaucrats who rely on
social statistics in shaping public policy inadvertently ignore the white
ethnic groups. Additionally, it is now all but impossible to prove the
existence of either ethnic differences otherthan those based on skin color or
discrimination against white ethnics. White ethnics who are victims of
discrimination, therefore, must try to prove this without the benefit of
group statistics. This burden is difficult, if not impossible, to overcome.
Notwithstanding the lack of government statistics, several private
studies have concluded that discrimination against Americans of southern
and eastern European ancestry persists. A study of the 106 largest business
entities in Chicago, for example, revealed that fewer than three percent of
their directors and fewer than four percent of their officers were either
Italian, Polish, Latin or Black. Moreover, eighty-four of the corporations
had no director of Italian extraction, and seventy-five of the companies had
no Italian officers.n A 1975 study conducted in Detroit disclosed similar
statistics.2 9 Additionally, studies of large law firms in Detroit and New
York City suggest that these firms observe discriminatory hiring and
promotion practices. The studies indicate that those of Mediterranean or
Slavic ancestry commonly engage in solo practice, and higher paying
positions with firms generally are held by persons of Northeastern European
ancestry. 0 It also appears that Protestant lawyers have had a far greater
likelihood of ending their careers in large firms than have Catholic or
Interestingly, governmental agencies such as the EEOC are aware of
the ongoing discrimination against the white ethnic groups. According to
the EEOC's guidelines, Americans of southern and eastern European
ancestry "continue to be excluded from executive, middle-management, and
other job levels because of discrimination based upon their religion and/or
national origin. '32 It is therefore difficult to understand why the EEOC
does not collect data on these groups or promote affirmative action on their
behalf. Despite this inconsistency, a review of EEOC policy statements
and guidelines reveals no express explanation for its selective enforcement
of Title VII of the Civil Rights Act of 1964.
See Institute of Urban Life for the National Center for Ethnic Affairs, Minority Report:
The Representation of Poles, Italians, Latins, and Blacks in the Executive Suites of Chicago's
Largest Corporations (1974).
2 See MICHIGAN ETHNIC HERITAGE STUDY, EcONoMIc EIrTE STUDY (1975).
30 Ladinsky, The Impact of Social Backgrounds of Lawyers on Law Practiceand the Law, 16
J. LEGAL EDUC. 127, 136-38 (1963).
11See J. CARLIN, LAWYERS' ETHICS 28 (1966).
12 Office of Federal Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor, Guidelines on Discrimination Because of Religion or National Origin, 41
C.F.R. § 60-50.1b (1978).
LEGISLATIVE HISTORY OF THE CIVIL RIGHTS STATUTES
The Reconstruction Statutes
A primary goal of the Civil Rights legislation enacted after the Civil
War 33 was to eliminate the vestiges of slavery and protect blacks from
racial discrimination. Interestingly, however, a review of the legislative
history of the Civil Rights Acts of 1866, 1870, 1871 and 1875 reveals that
their supporters intended that the Acts protect the civil liberties of all
persons, without regard to national origin or race.3' The desire to provide
equal protection under the law and equality of economic opportunity to all
persons was expressed by the proponents of legislation and formed the
basis of objection by opponents.35
The sweeping reforms sought by the proponents of the 1866 Act are
illustrated by the remarks of Senator Lyman Trumbull, Chairman of the
Senate Judiciary Committee, during the congressional debate on the Bill:
Then, sir, I take it that any statute which is not equal to all, and which
deprives any citizen of civil rights which are secured to other citizens, is an
unjust encroachment on his liberty; and is, in fact, a badge of servitude
which, by the Constitution, is prohibited.3
Similar sentiments were expressed by other legislators during the
de3 The thirteenth amendment, adopted in 1865, was implemented by the Civil Rights Act of
1866, ch. 31; 14 Stat. 27 (codified at 42 U.S.C. §§ 1981, 1982 (1976)). The fourteenth and
fifteenth amendments were adopted in 1868 and 1870, respectively, and were followed by
passage of the Civil Rights Acts of 1870, ch. 114, 16 Stat. 140, Feb. 28, 1871; ch. 99, 16 Stat.
433, Apr. 20, 1871; ch. 22, 17 Stat. 13; and 1875, ch. 114, §§ 3-5, 18 Stat. 335. The Civil Rights
Act of Apr. 20, 1871, expressly enforcing the fourteenth amendment, is now 'codified at 42
U.S.C. §§ 1983, 198
U See, e.g., Buchanan, The Quest for Freedom: A Legal History of the Thirteenth
Amendment (ch. 1), 12 Hous. L. REv. 1, 21 (1974). Professor Buchanan's research on the legal
history of the thirteenth amendment is contained in a series of articles published in volume
12 of the Houston Law Review.
1 See id. at 21-22.
31 CONG. GLOBE, 39th Cong., 1st Sess. 474 (1866). Senator Trumbull is viewed by some as a
controversial figure in the Reconstruction Congress. One reason for this is that he seems to
have reversed himself on the crucial civil rights issue of the day. He was a leading architect
of the thirteenth amendment and the Civil Rights Act of 1866, yet he opposed the adoption
of the fourteenth amendment in 1868 and the passage of the Civil Rights Acts of 1871 and
1875. Professor Buchanan explains that Trumbull's opposition to the Civil Rights legislation
of the 1870's was grounded in the belief that it was superfluous. Trumbull disagreed with
those in the Senate and the House who believed that the Civil Rights Act of 1866 was an
unconstitutional exercise of Congressional authority and, therefore, opposed the attempt to
legitimize it by adoption of the fourteenth amendment and passage of the Civil Rights Act
of 1871. Although the amendment and Act remained dormant for many years following the
Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873), and the Civil Rights Cases, 109 U.S. 3
(1883), both provisions have been revitalized by recent decisions of the Supreme Court. See
Buchanan, The Quest for Freedom: A Legal History of the Thirteenth Amendment (ch. 2),
12 Hous. L. REv. 331, 339 (1975).
bates.31 While it is clear, therefore, that passage of the Civil Rights Act of
1866 was intended to secure protection under the law for persons of every
race, there is strong evidence to suggest that it also was directed at
eliminating discrimination based on religion, sex and national origin. 38
Although national origin discrimination was not expressly mentioned
in Congressional debates on the Reconstruction statutes, this is reasonable
because the debates preceded the mass migration of southern and eastern
Europeans by several years. 3 Indeed, recognition that discrimination
based on national origin constitutes a social problem is of recent vintage,
and many in the intellectual and cultural elite still do not so regard it.10
Only within the past fifteen years has any systematic attempt been made
in the United States to examine either the concept of cultural pluralism
or the related problem of discrimination based on national origin.4
In an historical study of the thirteenth amendment," Professor G.
Sidney Buchanan contends that since the Reconstruction statutes were
intended to protect all persons from arbitrary class prejudice, they should
be construed broadly to proscribe various forms of class prejudice,
including national origin discrimination.' 3 Not all scholars have adopted
Professor Buchanan's interpretation, some expressing the view that the
legislative intent of the thirteenth amendment was limited to the abolishment
of slavery." In support of this restrictive interpretation, it is observed that
the fourteenth amendment15 extends civil rights to all persons, including
11During the ten year period between 1865 and 1875, several legislators came out in favor of
legislation that would guarantee civil rights to all persons. For example, Iowa Representative
Wilson, Chairman of the Judiciary Committee, argued that the thirteenth amendment would
provide "a remedy which [would] make the future safe for the rights of each and every
citizen." CONG. GLOBE, 38th Cong., 1st Sess. 1203 (1864). Similarly, Ohio Representative
Bingham, architect of the fourteenth amendment, hoped that the amendment and the
legislation following its adoption would extend the equal protection of the laws to all citizens. B.
SCHWARTZ, STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS (pt. 1) 191 (1970). See also
Buchanan, The Quest for Freedom: A Legal History of the Thirteenth Amendment (ch. 2),
12 Hous. L. REV. 331, 341-42 (1975).
m Buchanan, The Quest for Freedom: A Legal History of the Thirteenth Amendment (ch.
8), 12 Hous. L. REV. 1070, 1075-77 (1975).
11As earlier noted, southern and eastern Europeans began to arrive in the United States in
large numbers during the 1880's. See note 9 and accompanying text supra.
,0 See note 21 supra.
" See note 26 supra.
42 The thirteenth amendment provides, in pertinent part:
Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United States,
or any place subject to their jurisdiction.
U.S. CONST. amend. XIII, § 1.
" See generally Buchanan, The Quest for Freedom: A Legal History of the Thirteenth
Amendment (ch. 8), 12 Hous. L. REV. 1070 (1975).
" B. SCHWARTZ, supra note 37, at 23-24.
, Section one of the fourteenth amendment provides:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No
freed slaves, whereas the thirteenth amendment merely abolishes slavery.4"
If the thirteenth amendment had been intended to protect the civil rights
of all persons, it is argued, there would have been no need for the
fourteenth amendment. Even those who subscribe to this restrictive
interpretation concede, however, that both the thirteenth amendment and the
Civil Rights Act of 1866 were intended by their proponents to be broad
enough in scope to eliminate all "badges of servitude" ana protect every
citizen's civil rights. 7 It appears that passage of the fourteenth amendment
resulted from a fear that the Civil Rights Act of 1866, vetoed by President
Andrew Johnson, was unconstitutional. Legislators feared that the
thirteenth amendment did not authorize them to prohibit acts of
discrimination such as those proscribed by the statute. 4" Regardless of the influence
that legislative caution may have had on the adoption of the fourteenth
amendment, however, it is submitted that the intent underlying the
thirteenth amendment and the Civil Rights Act of 1866 is sufficiently
farreaching to prohibit both private and governmental acts of arbitrary class
discrimination, including discrimination based on religion, sex and
The Modern Civil Rights Statutes
Following the Supreme Court's decision in Brown v. Board of
Education," rendered in 1954, the problem of racial discrimination became
an important public issue. Congress made weak attempts to cure the
problem in 19570 and 1960,11 but it was not until 1964 that a strong civil rights
act was passed expressly prohibiting discrimination based on religion,
national origin, race and color.52 Constitutional authority for passage of the
Civil Rights Act of 1964 was derived from the commerce clause and the
fourteenth and fifteenth amendments. As Professor Buchanan observes,
there were several reasons for Congress' refusal to place express reliance
on the thirteenth amendment in adopting either this Act or the Civil
Rights Act of 1968. First, Congress was reluctant to rely on a "badge of
slavery" theory based on a liberal construction of the thirteenth
amendment that had not been tested in the courts. Moreover, the thirteenth
amendment was considered "dead," since slavery long since had been
abolished. Finally, the modern civil rights statutes prohibited forms of
arbitrary class discrimination other than merely racial discrimination.
Since the thirteenth amendment was viewed strictly as a prohibition of
slavery, Congress rejected the idea that it could provide a constitutional
basis for other nonracial forms of class discrimination. 53
A review of the Congressional debates on the modem Civil Rights Acts
reveals that Congress' main concern in enacting this legislation was to
protect blacks from racial discrimination. Although it is difficult to find
references to national origin in the Congressional debates, it is clear that
some members of Congress, such as Senator Javits, envisioned legislation
of broad scope, intending the statute to prohibit discrimination based on
national origin, religion- and sex, as well as race. For example, a discussion
of the definition of national origin took place in 1959 between Senators
Javits and Ervin:
What does the term 'national origin' mean?
Well, the term national origin means people whose ancestry is foreign to
that of the United States, and it remains distinguishable in their customs
and in the fact that they haven't been here more than one generation."4
Unfortunately, even Senator Javits, who supported the Act, apparently
would have limited the term "national origin" to the immigrant generation
itself. Congressional concern for national origin again emerged in debates
preceding passage of Title VII of the Civil Rights Act of 196411 and
amendments to the same in 1972. The 1972 debates demonstrated a growing
awareness of the need to protect white ethnic groups from national origin
discrimination. The comments of Senators Williams and Javits during the
debates clearly indicated this:
Irish, Italians, Jewish people, black people, and women - these are the
people to whom we are trying to give an equal opportunity ....
3 Although much of the modern civil rights legislation has sprung from the fourteenth
amendment, the thirteenth amendment achieved a new prominence in the area with the
Supreme Court decision in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). See generally
Buchanan, The Quest for Freedom:A Legal History of the Thirteenth Amendment (ch. 6),
12 Hous. L. Rav. 844 (1975).
4, Hearing Before the Subcommittee on Constitutional Rights of the Committee on the
Judiciary, U.S. Senate, 86th Cong., 1st Seas. 27 (1959).
11See 110 CONG. REc. 2549 (1964).
One of the things that those discriminated against have resented the
most is that they are relegated to the . . .blue-collar jobs . . .;and that
though they built America, ... they cannot ascend the higher rungs in
professional and other life.50
In a 1972 amendment to the Higher Education Act of 1965, entitled
the Ethnic Heritage Studies Program, 7 the House of Representatives
issued a statement of policy that clearly showed a new attitude toward
ethnicity and cultural pluralism in the United States:
The Committee believes . . . [that] we ought to recognize . . .what has
always existed in our country: an amazing mosaic of diverse groups, each
with its own characteristics but each lending strength to the unified whole. 58
In summary, Congressional debates on the modem civil rights acts
reveal that although Congress' primary goal in passing the acts was to
protect blacks from racial discrimination, some legislators also desired to
proscribe discrimination based on religion, national origin and sex.
Moreover, it appears that the term national origin was intended to apply to all
national groups, including Americans of southern and eastern European
ancestry. It is submitted that the civil rights legislation currently in force
is written in language that is broad enough to bring about the reforms
sought by its most ambitious proponents.
JUDICIAL INTERPRETATIONS CONCERNING
Cases Construing the Reconstruction Statutes
review of the case law relevant to national origin discrimination suggests,
however, that the possibility of successfully basing claims on these statutes
may be increasing.
In three noteworthy cases of modern vintage, the United States
Supreme Court held that the Reconstruction statutes proscribe all racial
discrimination, both private and public. In these cases, the Court
construed the statutes to be valid exercises of Congressional power under the
thirteenth amendment.5 In so doing, the Court revitalized the thirteenth
amendment and, in the words of Professor Buchanan, restored it "to its
intended position in the regulation of arbitrary class prejudice." 0
In the landmark case of Jones v. Alfred H. Mayer Co.," a Black man
and his wife were denied the right to purchase a home in a suburb of St.
Louis, Missouri, by a private real estate company. Alleging that they had
been refused the home solely because of their race, the couple brought suit
under section 1982 of title 42 of the United States Code, which guarantees
all persons an equal right to purchase property. 2 The Court held that
section 1982 bars all racial discrimination, private and public, in the sale
or rental of property. 3 It should be noted, however, that the Court
expressly limited its holding to racial discrimination. 4
The Court again considered the degree to which the government may
proscribe private discrimination in Griffin v. Breckenridge,
5 decided in
. Griffin arose out of an incident in which a group of blacks, who were
traveling by automobile on a Mississippi highway, were stopped by two
white men, forced to get out of their car and beaten with clubs. The Court
held that section 1985(3), which permits those deprived of civil rights to
bring an action to recover damages," reaches private conspiracies and that,
so construed, it is a valid exercise of Congressional power under the
thirteenth amendment. 7 Interestingly, the Court in Griffin did not limit
section 1985(3) to racial discrimination. Instead, it ruled that section 1985(3)
provides relief whenever it is shown that there was "some racial, or perhaps
otherwise class based, invidiously discriminatory animus behind the
conspirators' action."" The Court added in a footnote that "[wie need not
decide, given the facts of this case, whether a conspiracy motivated by
invidiously discriminatory intent other than racial bias would be
actionable under the portion of § 1985(3) before us."'" This expansive language
has been construed by a number of lower courts to mean that section
1985(3) prohibits discrimination based on nonracial classifications such as
sex, religion and national origin.7" Based on Griffin, therefore, it appears
that section 1985(3) may be construed to protect Americans of southern
and eastern European ancestry from national origin discrimination.
Five years after its decision in Griffin, the Supreme Court was
presented with another claim of private discrimination in Runyan v.
McCrary.7 The lawsuit in Runyan was brought by two Black families
whose children were denied admission into two private schools in Virginia
solely on the basis of their race. Construing section 1981, which guarantees
equal protection of the laws to "[aIll persons within the jurisdiction of the
United States," 2 the Court held that this section bans private and public
racial discrimination in the making and enforcing of contracts.7 3
Case law interpreting section 1981 is in a state of flux, although recent
decisions appear to have broadened the statute's scope. On the same day
that the Runyon case was decided, for example, the Court expanded
section 1891 to include discrimination against white persons in McDonald v.
Sante Fe Trail TransportationCo.,7' stating:
Unlikely as it might have appeared in 1866 that white citizens would
encounter substantial racial discrimination of the sort proscribed under the Act, the
statutory structure and legislative history persuade us that the 39th Congress
was intent upon establishing in the federal law a broader principle than
would have been necessary simply to meet the particular and immediate
plight of the newly freed Negro slaves."'
Section 1981 has been extended by some lower courts to apply to
nonracial classifications such as alienage78 and national origin as it relates
to Hispanic Americans," although there is a split in authority over the
application of the sections to Hispanics."8 Cases concerning the rights of
Hispanic'Americans under section 1981 reveal how problematical the
concept of cultural pluralism has proven for the courts. Courts that have
extended the protection of the section to Spanish surnamed persons have
found national origin to be indistinguishable from racial discrimination or
have equated it with alienage. In Miranda v. Local 208, Amalgamated
Clothing Workers, for example, the District Court for the district of New
While section 1981 may have had its historical roots in the post-Civil War
attempt to eradicate all incidence of black slavery, this section, like all Civil
Rights legislation, has been broadly construed to effectuate its remedial
purpose of providing equal opportunity in all institutions for all protected
minorities . ...
Section 1981 has become a major tool in the struggle for equal
employment opportunities for the nation's minorities, including Blacks, Indians,
aliens, Mexican-Americans, and Puerto Ricans.7
Although the Mirandacourt did not expressly include Americans of
southern and eastern European ancestry in its discussion of "protected
minorities," there appears to be no reason for these groups to be excluded from
protection under this interpretation of section 1981.
7' Id. at 295-96.
' Guerra v. Manchester Terminal Corp., 350 F. Supp. 529, 536 (S.D. Tex. 1972).
See Ortega v. Merit Ins. Co., 433 F. Supp. 135 (N.D. Ill. 1977); Maldonado v. Broadcast
Plaza, Inc., 10 FEP Cas. 839 (D. Conn. 1974); Miranda v. Local 208, Amalgamated Clothing
Workers, 10 FEP Cas. 557 (D.N.J. 1974); Sabala v. Western Gillette, Inc., 362 F. Supp. 1142
(S.D. Tex. 1973), aff'd, 516 F.2d 1251 (5th Cir. 1975), vacatedon other grounds, 431 U.S. 951
71 See Vera v. Bethlehem Steel Corp., 448 F. Supp. 610 (M.D. Pa. 1978); Martinez v.
Bethlehem Steel Corp., 78 F.R.D. 125 (E.D. Pa. 1978); Jones v. United Gas Improvement Corp., 68
1 (E.D. Pa. 1975
7110 FEP Cas. 557, 558 (D.N.J. 1974) (citation omitted). While no case has been found in
which a court has construed section 1981 to protect Americans of southern and eastern
European ancestry, see notes 80-82 and accompanying text infra, the Miranda court's broad
interpretation of the section is not entirely unique. Other courts have held that section 1981
protects aliens, including Mexican Americans, see Sabala v. Western Gillette, Inc., 362 F.
Supp. 1142, 1147 (S.D. Tex. 1973), aff'd, 516 F.2d 1251 (5th Cir. 1975), vacated on other
grounds, 431 U.S. 951 (1977), and Puerto Ricans, see Maldonado v. Broadcast Plaza, Inc., 10
FEP Cas. 839, 840 (D. Conn. 1974).
Notwithstanding the liberal construction given section 1981 in cases
such as Miranda, no case has been found in which the section was held
applicable to Americans of southern and eastern European ancestry. The
difficulty experienced by white ethnics claiming to have suffered from
discrimination is illustrated by the case of Budinsky v. Corning Glass
Works.80 In 1977, John Budinsky, a former employee of Corning Glass
Works, brought suit against Corning, claiming that Corning had demoted
and ultimately discharged him solely due to his Slavic origin. Offering both
historical and sociological data in his brief, Budinsky contended that to
exclude ethnic groups such as Slavs from the scope of section 1981 would
be to ignore the social changes that have occurred in the United States
since the statute was enacted. In making this argument, Budinsky urged
the court to define the word "race" in its sociological rather than biological
sense. "Race" in the sociological sense considers "the concept that people
differ from each other not primarily because of their physical
characteristics, but because of cultural and national differences."'" Labelling this
argument "rather sophisticated," the court rejected it as too scientific and
not pragmatic. The court refused to bring persons of Slavic, Italian or
Jewish origin within the ambit of section 1981 protection, although it
would have extended protection to an Indian litigant. In making this
distinction, the court stated that the latter group "have been traditional
victims of group discrimination, and, however inaccurately or stupidly, are
frequently and even commonly subject to a 'racial' identification as
Other courts appear to be struggling with the problem of defining
"race" and "national origin" for section 1981 purposes. In one recent case,
a federal district court suggested that a "pragmatic approach" would be
for courts to acknowledge that ethnic minorities, "such as Italians and
Jews at the turn of the century or Hispanics today, may 'drift' within and
later without Section 1981 protection, depending on the circumstances of
the times, and the shifts in recognition of ethnic and racial equality by the
majority.8' 3 The court in this case noted, however, that there are logical
problems involved in this approach.8 '
1 14 FEP Cas. 504 (W.D. Pa. 1977).
" Brief for Plaintiff at 5, Budinsky v. Coming Glass Works, 14 FEP Cas. 504 (W.D. Pa.
'* 14 FEP Cas. at 506. Relying upon Budinsky for precedent, the same court subsequently
dismissed another complaint against the same employer by another Slavic-American. See
Sokolski v. Coming Glass Works, 14 FEP Cas. 936, 937 (W.D. Pa. 1977). See also Kurylas v.
United States Dep't of Agriculture, 373 F. Supp. 1072 (D.D.C. 1974) (§ 1981 inapplicable to
Americans of Polish ancestry).
A3 Ortega v. Merit Ins. Co., 433 F. Supp. 135, 139 (N.D. Ill. 1977).
"Id. at 139. In another case, Cubas v. Rapid Am. Corp., 420 F. Supp. 663 (E.D. Pa. 1976),
the court discussed the problems encountered in trying to determine whether discrimination
against a national origin group constitutes racial discrimination and offered suggestions for
approaching these problems:
Equal Protection Clause cases analyzing the classness of Hispanic American groups
have not focused on racial characteristics because classness could be proved on the
While persons claiming to have been injured by national origin
discrimination thus far have not fared well in the courts, Griffin v.
Breckenridge appears to have opened the door to such claims under section
1985(3). Professor Buchanan suggests that the next step should be for
Congress to provide statutory protection for the nonracial classes using the
"badge of slavery" concept of the thirteenth amendment. 5 Unless and
until congressional action is forthcoming, however, white ethnics who seek
remedies under section 1981 based on national origin discrimination
probably will not be successful in their claims.
Cases Construing the Modern Civil Rights Statutes
The Civil Rights Act of 1964 specifically prohibits discrimination
based on nonracial classifications such as national origin and religion."
Clearly, then, the problem encountered in section 1981 cases of defining
"racial" broadly enough to include "national origin" does not exist in cases
construing modern civil rights legislation. Although national origin
discrimination has been outlawed by the 1964 Act, however, the Act gives no
definition of the term "national origin." Both the United States Supreme
Court and the EEOC have offered definitions. In Espinoza v.
FarahManufacturing, Inc., the Court stated that "[t]he term 'national origin' on its
face refers to the country where a person was born, or, more broadly, the
country from which his or her ancestors came.""7 Under EEOC policy,
national origin "has come to mean the country of one's ancestry-rather
than race or color.""8 Thus, national origin includes members of all
national groups, including Americans of southern and eastern European
Most claims of national origin discrimination filed by Americans of
southern and eastern European heritage under the 1964 Act have alleged
violations of Title VII."1 It appears that all of these claims have met with
failure. While some have been dismissed on procedural grounds,"0 those
that have been decided on their merits also have failed., In Cariddi v.
Kansas City Chiefs Football Club, Inc.,' 2 for example, the plaintiff, an
Italian-American, claimed that ethnic slurs such as the words "dago" and
"Mafia" constituted Title VII violations. The court rejected this claim,
finding that the slurs were "part of casual conversation and did not rise to
the level necessary to constitute a violation of Title VII." ' In determining
that there had been no violation, the court noted that other Italian
Americans were employed by the employer and that the plaintiff's wife and
daughter also were employees."
At the time this paper is published, an important Title VII case
involving an Italian American is still pending. John Lucido, an attorney
formerly associated with a large law firm in New York City, has
commenced an action against the firm, claiming that he was discriminated
against with respect to work assignments, training, rotation, outside work
opportunities and advancement because he is Italian and Catholic. Lucido
prevailed in a procedural challenge as to whether there existed an
employer-employee relationship for Title VII purposes," and therefore the
case will proceed on the merits. An amicus curiae brief filed by The
Catholic League for Religious and Civil Rights in support of plaintiffs claim
makes extensive use of statistical data compiled in private studies on both
" In addition to Title VII, there is a growing number of national origin discrimination cases
being brought against public school systems under Title VI by the racial and Hispanic
minorities to obtain bilingual-bicultural programs. The plaintiffs in these cases, for the most
part, have been successful. See Lau v. Nichols, 414 U.S. 563 (1974); Sema v. Portales Mun.
Schools, 499 F.2d 1147 (10th Cir. 1974); United States v. Texas, 342 F. Supp. 24 (E.D. Tex.
1971), aff'd, 466 F.2d 518 (5th Cir. 1972).
0 See Hofer v. Campbell, 17 FEP Cas. 1096 (D.C. Cir. 1978) (Hungarian); Geronymo v.
Joseph Home Co., 440 F.Supp. 1157 (W.D. Pa. 1977) (Greek).
" See Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87 (8th Cir. 1977) (per
curiam) (Italian); Bozicevich v. American Airlines, 17 FEP Cas. 247 (S.D.N.Y. 1977)
(Italian); Sek v. Bethlehem Steel Corp., 421 F. Supp. 983 (E.D. Pa. 1976), aff'd mer., 565 F.2d
153 (3d Cir. 1977) (Polish); Kutska v. California State College Dep't of Educ., 410 F. Supp.
48 (W.D. Pa. 1976), aff'd mem., 549 F.2d 795 (3d Cir. 1977) (Slavic); Fekete v. United
States Steel Corp., 353 F. Supp. 1177 (W.D. Pa. 1973) (Hungarian); Spero v. American Home
Prods. Corp., 13 FEP Cas. 1737 (N.D. Ill. 1973) (Italian).
32 568 F.2d 87 (8th Cir. 1977) (per curiam).
'a Id. at 88.
" Id. In Bozcievich v. American Airlines, 17 FEP Cas. 247 (S.D.N.Y. 1977), the court
similarly found that the defendant-employer's employment practices indicated an absence of
discrimination. See also cases cited in note 91 supra.
" Lucido v. Cravath, Swaine & Moore, 425 F. Supp. 123 (S.D.N.Y. 1977).
past and present discrimination against Catholics, Jews, Italians, and
The Equal Protection Clause and National Origin Discrimination
No cases involving claims of national origin discrimination brought by
an American of southern and eastern European ancestry have reached the
Supreme Court. The question whether classifications on the basis of these
ethnic groups are inherently suspect under the Equal Protection clause of
the fourteenth amendment therefore has never been directly addressed by
the Court. In the case of Regents of the University of Californiav. Bakke, '
however, Justice Powell, who announced the opinion of the Court,
discussed the notion of cultural pluralism in terms that were broad enough
to apply to all ethnic groups:
During the dormancy of the Equal Protection Clause, the United States had
become a Nation of minorities. Each had to struggle-and to some extent
struggles still-to overcome the prejudices not of a monolithic majority, but
of a 'majority' composed of various minority groups of whom it was
said-perhaps unfairly in many cases-that a shared characteristic was a
willingness to disadvantage other groups. As the Nation filled with the stock
of many lands, the reach of the Clause was gradually extended to all ethnic
groups seeking protection from official discrimination. 7
This recent pronouncement of the Court suggests that a claim of national
origin discrimination brought by a white ethnic under the Equal Protection
clause might receive "strict scrutiny." Unfortunately, in order for an
individual pressing a claim under the fourteenth amendment to prevail, he or
she must prove that state action was involved in the discrimination and
that there existed discriminatory animus.1"
The existence of reverse discrimination, which is related to national
origin discrimination, may be traced to at least three sources. The first
source is an Executive Order promulgated in 1965 that requires an
employer performing a government contract to take "affirmative action" to
ensure that applicants are employed, and employees treated, without
regard to their race, creed, color or national origin." "'Affirmative action" has
been interpreted bythe Department of Labor to require that employers set
"goals and timetables" that favor certain minorities (other than white
438 U.S. 265 (1978).
'7 Id. at 292.
" Two commentators have suggested that in cases arising under the fourteenth amendment,
courts attach greater importance to the weight of the evidence than to evidence of purposeful
intent. See Neuberger & Grady, Evidence and Intent in a FourteenthAmendment
Employment DiscriminationCase, 29 LAB. L.J. 72, 76 (1978).
" Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (1965).
ethnics) in hiring and promotion practices. Reverse discrimination also
may be traced to the "goals and timetables" for employers and universities
to ensure affirmative action established by administrative agencies such
as the EEOC and the Department of Health, Education and Welfare.'" °
These goals and timetables essentially consist of numerical quotas. For
example, an employer may be required to hire or promote one "minority"
person for every "non-minority" person hired or promoted. White ethnics
obtain no relief from goals and timetables, because they are classified as
"non-minorities." This classification scheme appears to be anomalous,
since the EEOC has acknowledged the need for "affirmative action" on
behalf of persons of southern and eastern European ancestry discriminated
against because of religion or national origin.'' A third source of reverse
discrimination is judicial interpretation of the case of Griggs v. Duke
Power Co.,'02 wherein the Supreme Court held that proof of discriminatory
"impact" is sufficient to establish discrimination under Title VII. Courts
allow the EEOC to use employee statistics to establish "disparate impact"
on racial minorities,1'1 and employers have had little success rebutting
these statistics.1Iu Since white ethnics are excluded from the "minority"
classification, no statistics are gathered on employment practices relating
to them, and they are denied evidence of "disparate impact" that is
essential to prove discrimination. In effect, therefore, white ethnics are denied
the protection of the Civil Rights Act of 1964 due to governmental policies
creating preferential quotas that exclude them. Moreover, they are often
made to pay the costs of these governmental policies, because, as one
commentator suggests, "any quota agreement will necessarily affect the
rights of others not [parties] to the agreement .... "105
The governmental policy toward white ethnics has often caused these
"non-minorities" to sue on the basis of reverse discrimination. In these
reverse discrimination cases, courts have held that whites are protected
under both section 1981 and Title VII from racial discrimination. 06 In
addition, there have been several cases in which municipal affirmative
action programs utilizing employment quotas successfully have been
challenged on the ground that "voluntary" remedial racial quotas violate both
1"For a list of the groups upon which records are compiled, see 43 Fed. Reg. 38,297 (1978).
10141 C.F.R. § 60-5.2 (1978). It appears that the mere threat that the EEOC will take legal
action for noncompliance with its "goals and guidelines" has caused many employers to
institute "voluntary" quotas themselves. See Pati & Reilly, Reversing Discrimination:A
Perspective, 29 LAB. L.J. 9, 20 (1978).
M'401 U.S. 424 (1971).
"1 See Shoben, Probing the DiscriminatoryEffects of Employee Selection Procedureswith
DisparateImpact Analysis Under Title VII, 56 Tax. L. REv. 1, 29-30-& n.142 (1977).
"0 See Hay, Making Statistics Work for the Employer in Employment DiscriminationCases,
3 EMPLOYEE REL. L.J. 374 (1978).
"I Comment, Reverse DiscriminationDevelopments Under Title VII, 15 Hous. L. REv. 136,
'0 See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279-80 (1976); Spiess v. C.
Itoh & Co., 408 F. Supp. 916, 931-32
(S.D. Tex. 1976)
Title VII and the Equal Protection clause.0 7 These cases may be of
uncertain precedential value, however, in the wake of the Supreme Court's
decision in United Steelworkers of America v. Weber.'
In Weber, a white employee sued his employer and union, challenging
the legality of a voluntary affirmative action plan that mandated a
onefor-one quota for minority workers admitted to an on-the-job training
program. Finding that this quota violated Title VII, the Court of Appeals for
the Fifth Circuit held that, absent evidence of prior discrimination, an
Executive Order impliedly mandating a racial quota must fall. 09 In a 5-2
decision, the Supreme Court reversed and found the racial quota valid
under section 703(j) of Title VII" 0 based on the legislative history and
historical context out of which the Civil Rights Act of 1964 arose. Justice
Brennan, writing for the majority, stated that the primary concern of
Congress in enacting Title VII was to prohibit racial discrimination in
employment against blacks:
It would be ironic indeed if a law triggered by a Nation's concern over
centuries of racial injustice . . . constituted the first legislative prohibition of all
voluntary, private, race-conscious efforts to abolish traditional patterns of
racial segregation and hierarchy."'
Looking to the language of section 703(j), which expressly does not "require
any employer . . . to grant preferential treatment to any individual or
group" based on its status as a minority,"' the Court determined that
although the section does not literally require employers to provide
preferential treatment to blacks, inferentially it does not prohibit such quotas
either."3 The Court stressed the "voluntariness" of the quota, yet it
dis"7See Hiatt v. City of Berkeley, 10 FEP Cas. 25
1 (Cal. Super. Ct. 1975
); Lige v. Town of
Montclair, 72 N.J. 5, 367 A.2d 833 (1976); Chimill v. City of Pittsburgh, 15 FEP Cas. 447
(Commw. Ct. Pa. 1977).
' 47 U.S.L.W. 4851 (June 27, 1979), rev'g 563 F.2d 216 (5th Cir. 1977).
' 563 F.2d at 227.
'I0 47 U.S.L.W. at 4853.
Id. at 4854.
11 Section 703(j) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(j) (1976), provides, in
Nothing contained in this subchapter shall be interpreted to require any employer
. to grant preferential treatment to any individual or to any group because of the
race, color, religion, sex, or national origin of such individual or group ....
13 47 U.S.L.W. at 4854. Chief Justice Burger and Justice Rehnquist dissented from the
majority's ruling. In his dissent, Burger contended that sections 703(a) and (d), which
prohibit discrimination by employers based on "race, color, religion, sex, or national origin," did
violence to the interpretation given section 703(j) by the majority. The Chief Justice stated
that "it is specious to suggest that § 703(j) contains a negative pregnant that permits
employers to do what §§ 703(a) and (d) unambiguously forbid employers from doing." 47
U.S.L.W. at 4857-58 (Burger, J., dissenting) (emphasis in original). Burger concluded his
dissent by cautioning the majority to
beware the "good result," achieved by judicially unauthorized or intellectually
dishonest means on the appealing notion that the desirable ends justify the improper judicial
means. For there is always the danger that the seeds of precedent sown by good men
missed, without consideration, an admission by the employer that it had
adopted the plan under pressure from the federal agency charged with
enforcing the Executive Order."'
The Weber decision is a troubling one. Nowhere in the majority
opinion is there any mention of the fact that Congress intended to protect the
rights of ethnic groups other than blacks when it enacted Title VII. Indeed,
the Court appears not to have been sensitive to the effect of racial quotas
on white ethnics. The Court merely concluded that the challenged quota
did not "unnecessarily trammel the interests of the white employees.""' 5
There seems little doubt that the Weber decision diminishes the chances
of successful reverse discrimination claims under the 1964 Civil Rights Act.
Despite the pessimistic overtones of the Weber ruling, white ethnics
suffering from reverse discrimination may not be foreclosed from obtaining
relief. In Regents of the University of Californiav. Bakke,"' decided one
year prior to Weber, the Supreme Court held invalid a racial quota built
into a medical school's admissions policy. Although no majority consensus
was reached, Justice Powell, who announced the judgment of the Court,
concluded that the University's special admissions program, which was
unavailable to whites, was unnecessary to the achievement of a diverse
From the foregoing, it is clear that white ethnic Americans have
experienced little success in lawsuits alleging national origin discrimination.
Although the language of modern civil rights laws is broad enough to
extend protection to white ethnics, members of these groups still are not
accorded minority status by either the governmental agencies charged with
carrying the laws out or the courts in which relief is sought. There have
been situations in which white ethnics have procured relief from their
employers on the theory of reverse discrimination, but the continued
viafor the best of motives will yield a rich harvest of unprincipled acts of others also
aiming at "good ends."
Id. at 4858 (Burger, J., dissenting). For an example of a case in which a male employee
successfully contended that a program favoring female employees for purposes of promotion
was discriminatory, see McAleer v. American Tel. & Tel. Co., 416 F. Supp. 43
). See also Goodman, Equal Employment Opportunity: PreferentialQuotas and
Unrepresented Third Parties, 44 GEo. WASH. L. REv. 483 (1976).
" 47 U.S.L.W. at 4859 & n.2 (Rehnquist, J., dissenting).
"' 47 U.S.L.W. at 4855.
"' 438 U.S. 265 (1978).
II Id. at 320. In a case decided since the Bakke ruling, an Italian American who was denied
admission to law school challenged the constitutionality of the school's Special Academic
Assistance Program. See DiLeo v. Board of Regents of the Univ. of Colo., 590 P.2d 486 (Colo.
1978) (en banc), cert. denied, 441 U.S. 927 (1979). Notwithstanding DiLeo's demonstration
that he came from a disadvantaged background, the Colorado Supreme Court upheld the
program, which provided preferential treatment only to Blacks, Mexican Americans, and
Puerto Ricans. In reaching this decision, the court noted that even if it struck down the
program, DiLeo would be left without a remedy since he could not qualify for admission under
the regular admission process. 590 P.2d at 489.
bility of this approach has been cast in doubt by the Supreme Court's
recent Weber ruling.
As recently as about fifty years ago, immigrants from southern and
eastern Europe were labelled "inferior" and "unassimilable" by the
AngloAmerican establishment. Although members of these groups soon proved
themselves to be productive and hard working, the stigma of inferiority
remained codified in our immigration laws until 1968. White ethnics still
are not protected from other forms of discrimination, because
governmental agencies and courts are selective in their interpretation of civil rights
legislation. Apparently, it is assumed that these groups have been
absorbed fully into the "white majority." It is submitted that a consequence
of this assumption has been to deny white ethnics the equal protection of
the laws, and therefore the government's indifference toward persons of
southern and eastern European ancestry is in need of reform,
Several steps may be taken to protect white ethnic groups from
national origin discrimination. First, governmental agencies should begin to
collect data on ethnic origin."8 Group statistics play a significant role in
establishing discrimination, and they may help sensitize people to the
dramatic differences that exist between the various ethnic groups in the
United States. Second, individuals seeking relief in the courts from
national origin discrimination should make use of sociological and historical
evidence to support their claims."' Indeed, plaintiffs should argue that the
Anglo-conformist and melting pot theories are inherently discriminatory
since they require assimilation into a majority culture and, inferentially,
place a badge of inferiority on minority cultures. Finally, white ethnics
should resort to political and educational forums to foster an
understanding of the concept of cultural pluralism.
"I As a result of pressure from oriental ethnic groups, the 1980 census will include data on
ethnicity of all persons, not merely of the first two generations.
"I Comment, Cultural Pluralism, 13 HA.v. C.R.-C.L.L. REv. 169 (1978).
5'See Runyon v . McCrary , 427 U.S. 160 ( 1976 ); Griffin v . Breckenridge , 403 U.S. 88 ( 1971 ); Jones v . Alfred H. Mayer Co., 392 U.S. 409 ( 1968 ). For a pre-Jones interpretation of the thirteenth amendment , see the Civil Rights Cases , 109 U.S. 3 ( 1883 ).
0 Buchanan, The Quest for Freedom: A Legal History of the Thirteenth Amendment (ch.
1) , 12 Hous. L. REv. 1 , 2 ( 1975 ).
" 392 U.S. 409 ( 1968 ).
42 U.S.C. § 1982 (1976) provides: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property .
392 U.S. at 437-39.
Id. at 439.
403 U.S. 88 ( 1971 ).
" 42 U.S.C. § 1985(c ) ( 1976 ) (formerly § 1985(3)) provides, in pertinent part: If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; . . .in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby