Spiess v. C. Itoh & Co.(America), Inc.

• Decision Date: 29 January 1976
• Docket Number: Civ. A. No. 75-H-267.
• Citation: 408 F. Supp. 916
• Parties: Michael E. SPIESS et al., Plaintiffs, v. C. ITOH & CO. (AMERICA), INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

408 F. Supp. 916

Michael E. SPIESS et al., Plaintiffs, v. C. ITOH & CO. (AMERICA), INC., Defendant.

Civ. A. No. 75-H-267.

United States District Court, S. D. Texas, Houston Division.

January 29, 1976.

J. Anthony Hale, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, Tex., for plaintiffs.

Neil Martin, Fulbright & Jaworski, Houston, Tex., for defendant.

MEMORANDUM AND OPINION

CARL O. BUE, Jr., District Judge.

I. INTRODUCTION

Plaintiffs, white American citizens of non-Japanese national origin, have filed suit on behalf of themselves and all other non-secretarial personnel of non-Japanese national origin who have been, are now, or might be employed by defendant, an American corporation wholly owned by C. Itoh & Co., Ltd., of Japan. Plaintiffs allege that defendant discriminates in its employment practices against the class on the basis of national origin, race and color, in violation of 42 U.S.C. § 2000e ("Title VII") and 42 U.S.C. § 1981.¹

Defendant has moved to dismiss the § 1981 claim contending that plaintiffs, as white American citizens, have no standing to bring an action under § 1981. Alternatively, defendant contends that even if plaintiffs have standing to bring suit on behalf of its non-Japanese employees who are not white American citizens, plaintiffs themselves cannot state a claim upon which relief can be granted as to them because they are white American citizens.

Upon exhaustive review of existing case law and supporting legal authority, this Court no longer agrees with defendant's contentions and hereby withdraws an opinion to the contrary entered in this case on May 9, 1975. After carefully evaluating as of this time appropriate judicial, scholarly and legislative authorities, the Court concludes that the statutory language, the legislative history and the more persuasive judicial interpretations of 42 U.S.C. § 1981 in light thereof support the view that plaintiffs have standing to bring this action and that they may also state a claim upon which relief can be granted as to them solely because they allege discrimination on the basis of their white race.² Plaintiffs further have standing to bring this action on behalf of other non-Japanese persons who are non-whites and are alleged to be discriminatees.³

II. THE LANGUAGE OF THE STATUTE

To clarify the somewhat confusing and complicated statutory interpretation which is generated when white citizens sue under § 1981, this Court must begin with an examination of the wording of the subject statute and its centenarian antecedents. The post-war statute as originally enacted provided as follows:

"Be It Enacted by the Senate and House of Representatives of the United States of America in Congress Assembled,

"That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding." (Emphasis added)

Act of April 9, 1866, c. 31, § 1, 14 Stat. 27, re-enacted by § 16 of the Enforcement Act of 1870, Act of May 31, 1870, c. 114, § 16, 16 Stat. 140, 144 (1870).⁴

The present codification of § 1981 is derived from Revised Statutes § 1977 (1874), which codified the Act of May 31, 1870, § 16, 16 Stat. 144. The current version of 42 U.S.C. § 1981 provides as follows:

"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." (Emphasis added)

The first italicized phrases in both the original and modern versions — "citizens of every race and color" (original); "all persons" (modern) — suggest by their wording that white citizens are included in the category of persons protected from discrimination on the basis of race. If this phrase stood alone, there would be no difficulty in straightforwardly applying the statute to white citizens. The second italicized phrase in both versions —"as is enjoyed by white citizens"— complicates any such straightforward application.

Considering the first and second phrases together, at least three statutory interpretations suggest themselves: (1) that the phrases "citizens of every race and color" (original) and "all persons" (modern) contradict the phrase "as is enjoyed by white citizens"; (2) that the phrase "as is enjoyed by white citizens" qualifies and limits the protection of the statute to aliens and non-white American citizens; or (3) that the phrase "as is enjoyed by white citizens" represents a barometer with which to measure protection afforded to rights now to be enjoyed by all persons regardless of race which were enjoyed as a matter of law prior to 1866 only by white citizens, the group then racially "favored".

To assess the accuracy of these and other possible interpretations of the statute, this Court must gauge the intent and prevailing mood of Congress when it enacted the 1866 Civil Rights Act by examining available legislative history for § 1 of that Act.

III. LEGISLATIVE HISTORY OF THE STATUTE

A. The Senate Version

Amidst the crescendo of post-Civil War emotion, and in the wake of the ratification of the Thirteenth Amendment to the United States Constitution on December 18, 1865,⁵ the Civil Rights Act was introduced in the Senate as Senate Bill 61 on January 5, 1866, by Senator Lyman Trumbull, chairman of the Senate Judiciary Committee.⁶ Cong. Globe, 39th Cong., 1st Sess. 129 (1866).

To Senator Trumbull, the term "civil rights" comprehended certain fundamental rights which all persons had, regardless of their race, color or any other factor which was subject to discrimination. References to race and color, nevertheless, were inserted into the bill to undercut the vitality of "Black Code" laws in the Southern states. See Cong. Globe, 39th Cong., 1st Sess. 474-76 (1866). Trumbull therefore envisioned an immediate goal by referring in the bill to race and color — striking down the most visible manifestation of de jure racial segregation (the "Black Codes") — and a long-range goal by creating a new definition of "civil rights" — affirmatively securing "for all men, whatever their race or color, the great fundamental rights." Cong. Globe, 39th Cong., 1st Sess. 599 (1866) cited in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 432, 88 S.Ct. 2186, 20 L.Ed. 1189 (1968) (emphasis added).

Thus, as he emphasized to his fellow Senators, his bill contained no comparative phrase such as "as is enjoyed by white citizens":

"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 upon his liberty; and is, in fact, a badge of servitude which, by the Constitution, is prohibited."

Cong. Globe, 39th Cong., 1st Sess. 472 (1866).

The desire to ensure the equal treatment of all men by his legislation was reiterated by Senator Trumbull during floor debates after the bill was reported out of committee unchanged on January 11, 1866, and sent for consideration to the full Senate on January 29. To an attack on the bill by one of its opponents, Senator Garrett Davis of Kentucky, on February 2, Trumbull responded as follows from the floor of the Senate:

"Sir, this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness; and that is abominable and iniquitous and unconstitutional! Could anything be more monstrous or more abominable than for a member of the Senate to rise in his place and denounce with such epithets as these a bill, the only object of which is to secure equal rights to all the citizens of the county, a bill that protects a white man just as much as a black man? With what consistency and with what face can a Senator in his place here say to the Senate and the country that this is a bill for the benefit of black men exclusively when there is no such distinction in it, and when the very object of the bill is to break down all discrimination between black men and white men?" (Emphasis added)

Cong. Globe, 39th Cong., 1st Sess. 599 (1866).

While Southern Senators such as Davis and Guthrie of Kentucky opposed the bill on racial grounds, see, e. g., Cong. Globe, 39th Cong., 1st Sess. 598 (remarks by Senator Davis); Id. at 601 (remarks by Senator Guthrie), the bill also drew Northern opponents, such as Cowan of Pennsylvania, Saulsbury of Delaware, and Van Winkle of West Virginia. Undoubtedly, some of their opposition was inspired by racial considerations, since racial equality was not a reality in many Union states.⁷ However, they also bottomed their opposition upon two significant constitutional questions: the authority of the Congress to endow former slaves with citizenship solely by legislative enactment; and the extent to which states' rights could be abrogated by decree of the Congress through proposed utilization of the federal judiciary to enforce newly-created...