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Civil Rights Laws Should Cover Jews and Arabs, Court Told With AM-Scotus Rdp Bjt

February 25, 1987

WASHINGTON (AP) _ The Supreme Court should extend a federal civil rights law, aimed primarily at helping blacks, to protect Jews and Arabs from racial discrimination, attorneys said Wednesday.

Hearing oral arguments in two cases, the court was considering whether the definition of race under federal law includes more than skin color.

In one case, a Jewish congregation is attempting to use the Civil Rights Act of 1866 to sue vandals for defacing a Silver Spring, Md., synagogue. In the other, an Arab professor is invoking the law in seeking tenure at a college in western Pennsylvania.

Caroline Mitchell, representing the professor, Majid Ghaidan Al-Khazraji, said the court must consider what legislators in 1866 meant by ″race.″ She pointed to concern at the time for Germans and Irish, groups targeted by the Know Nothing movement that sought to exclude immigrants from American society.

″The meaning of the word ‘race’ as we use it in 1987 is not the same as (it was in 1866.) ... To the legislators in 1866, race meant ancestry,″ she said.

The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled in favor of Al- Khazraji last March, saying he was a member of a group that was ″ethnically and physiognomically distinctive.″

But Miss Mitchell urged the high court to avoid that standard and instead use a definition of race hinging on common ancestry and culture. Otherwise, she said, courts would have to judge the physical characteristics of each plaintiff.

Nick S. Fisfis, representing St. Francis College in Loretto, Pa., which denied tenure to Al-Khazraji in 1978, said it is not clear from the legislative history that Congress meant to protect groups other than blacks and newly freed slaves.

″The language in the statute ... does not talk about ethnicity,″ he said. ″If Congress had in mind that all these ethnic groups were covered ... then it would have written the statute much more broadly.″

However, Justice Antonin Scalia told him, ″I think it’s clear that what they meant by race is quite different from what we mean by race.″

Al-Khazraji had also claimed discrimination based on religion and national origin under the Civil Rights Act of 1964, but the claims were dismissed because they were filed too late.

In the other case, the Shaare Tefila Congregation is suing vandals who spray-painted ″Dead Jew,″ ″Death to the Jude,″ swastikas, a skull and crossbones and Ku Klux Klan symbols on the outside of the synagogue in November 1982.

Patricia A. Brannan, representing the synagogue, which filed suit against eight men in 1984, asked the high court to overturn a ruling last March by the 4th Circuit Court of Appeals in Richmond, Va., that the civil rights law does not apply to Jews because they are part of the white race.

Ms. Brannan did not argue that Jews should be considered a separate race, but instead urged the court to make it clear that Jews and other groups need not prove they are racially distinct in order to win a claim under the law.

What is important, she said, is that the discrimination be racial in nature and that the discriminators be racially motivated.

The symbols painted on the synagogue, by recalling Nazi beliefs that Jews are a separate race, show that the desecration was racially rather than religiously motivated, she said.

Justice Sandra Day O’Connor called her argument ″a very peculiar approach″ and said, ″I don’t see anything in the legislative history to support″ it.

By depending on the beliefs of the vandals as to whether Jews constitute a separate race, Scalia told Ms. Brannan, ″It seems to me you’re only getting at the ill-educated discriminator.″

Deborah T. Garren, representing the accused vandals, said it would be foolish to base a finding of racial discrimination on the ″illogical and erroneous misperceptions of discriminators.″

She acknowledged that the vandalism was ″an egregious wrong that cries out for remedy,″ but said the proper remedy was through the state courts.

Five of the accused were prosecuted and received sentences ranging from probation to three years in prison. The congregation also could have sued for civil damages on the state level, but chose instead to bring a federal civil rights action, Mrs. Garren said.

Rejecting the argument that the definition of race could or should be drawn using legislators’ beliefs more than 120 years ago, Mrs. Garren said ″a more appropriate approach would be to bring the statute into the 20th century″ and define race as the word is commonly understood now.

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