








(2) "from relocating the Institute and transferring its operations to several different units of CUNY , and (3) from removing him as the Institute's director. At the heart of his brief was the averment of discrimination in employment on the basis of national origin. The statutory prohibition against this type of discrimination is specifically proscribed by Title VII of the Civil Rights Act of 1964. Notwithstanding, the prohibition has been largely ignored by the courts and rarely used with success by plaintiffs seeking redress on this ground.
The Scelsa Court granted all three requests (or prayers as we say) by way of a preliminary injunction pendente lite; that is, pending trial, it barred CUNY from acting so as to prevent the further perpetration of a perceived wrong(s) until such time as the underlying issues are resolved. It concluded that the plaintiffs (Dr. Scelsa and the Institute) had "shown a balance of hardships tipping decidedly in their favor" and "irreparable harm" would otherwise follow. Significantly, the Court allowed Dr. Scelsa, equating his position as director of the Calandra Institute with representation of the Italian-American community of New York City, to cross the litigation threshold to test the merits of the case. In doing so, the Court relied not only on the so-called "disparate impact" theory of Title VII, wherein a discriminatory effect may be shown vis-a-vis employment patterns, but, sua sponte: by its own initiative, it also invoked Section 1981 of the Civil Rights Act of 1866, our nation's first civil rights statute for jurisdictional purposes.
This Reconstruction era statute is far wider in scope than Title VII. It concerns the right to make and enforce both private and public contracts and provides broad federal remedies for the enjoyment of all benefits of a contractual relationship. The Court noted that "in grant-[ing injunctive] relief to which the party in whose favor it is rendered is entitled," it may do so on such grounds "even if the party has not [specifically] demanded such relief in the party's pleading." Section 1981 was not pleaded in the moving papers. But the Court raised CUNY's two-decade-old awareness of Italian-American nonrepresentation and the university's pledge(s) to address and seek to correct this imbalance to the level of a contractual relationship with the Italian-American community. It noted:
A Section 1981 violation may be established not only via presentation of evidence regarding defendant's affirmative acts but also by evidence regarding defendant s omission where defendant is under some duty to act. . The Court must find that CUNY's current policy represents either an attempt to renege on the promises of the past or by denying that such promises were ever made or intended to be kept, a reaffirmation of the original findings of discrimination against an under-representation of Italian Americans that motivated the original Kibbee Memorandum. . . .
Cited by the Scelsa Court is a case entitled St. Francis College v. Al-Khazraj, which was decided by the United States Supreme Court five years earlier in 1987. This also
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is significant. Due to the representative confer to Dr. Scelsa because of the Calandra Instih purposes, the citation espouses, on a stage c than employment, an opportunity for Italian as a group to redress harms arising out of nati discrimination. Discrimination on the basis i origin has always been, and sadly continue destructive force in American society. As : indistinguishable from racial discrimination standing, modern day civil rights legislatior prohibiting discrimination based on "race, cok sex or national origin," has not been interpr administratively or judicially to afford protecti victims of national origin discrimination. Th< unambiguous language set forth in Title VII a in Scelsa states that failure by an employer national origin "to hire ... or otherwise to d against any individual with respect to his coir terms, conditions, or privileges of employm unlawful employment practice. Yet the Act he of selective enforcement and it would appear of national origin discrimination either dis procedural grounds or on the merits have failure. A review of the regulations charting   with Title VII reveal that, notwithstanding the ence to "national origin," redress has prirr defined within the context of racial classil governmental purposes. Neither racial min ethnic minorities (including Italian Amerk "melted" into Anglo conformity. Sociologist agree that thus far in the American saga, "acc and not "structural assimilation" has prover norm; and the diversity inherent in "cultural has persisted well into the third, even the fou tion. Public policy misconception of the proces to ignore this reality, and the legal definition < continues for practical purposes to be synony skin color.
In light of this, no governmental compilatic data is either required or taken; thus, legal wri contend that is all but impossible to prove the < discrimination based on national origin. There Americans who are victims of discrimination prove their case without the benefit of official) statistics an overwhelming task given essent procedural requirements. The need for statist! in order to fulfill the initial legal burden of goi to establish what we term a prima facie case w Scelsa; nor did CUNY, despite good faith proir ted in the 197Os to do so, maintain ongoii Italian-American recruitment and employme. mative action purposes. However, and in v failure, two statistical studies compiled by d Calandra Institute, were deemed "the best a' dence" by the Court. The Scelsa Court went adopting the conception of race set forth in College under the 1866 law, it eased the v
addressing not only employment but an array of civil rights violations alleging national origin discrimination against Italian Americans by CUNY.
The Civil Rights Act of 1866 was an enabling statute for the Thirteenth Amendment. This post-Civil War enactment intended to confer the equality "enjoyed by white citizens" of the time the white majoritarian Anglo or Nordic "race" then populating the country, the standard control group, if you will upon all other persons and in all respects. The Supreme Court's decision in St. Francis College, relying on the 1866 Act, significantly expanded the definition of "race" for purposes that can find and have found expression in the modern day search for equal protection under the law by those claiming national origin discrimination.
In St. Francis College, the Court held that a white person may be protected from racial discrimination. It based its holding on a broad construction of the original intent of Sedion 1981 of the 1866 Act. Section 1981 of the Act states: "All Persons . . . shall have the same right ... to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings. . . The Court rejected the counter argument that a Caucasian was barred from suing other Caucasians under the statute. Instead, relying heavily on the legislative history of Section 1981 and on the general conception of race during the nineteenth century when the statute was enacted, it observed:
[It] may be that a variety of ethnic groups . . . are now considered to be within the Caucasian race. The understanding of "race" in the nineteenth 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 Section 1981 became law.
In support of this reasoning, the Court exanun strands of evidence from the nineteenth cen ury-nary and encyclopedia definitions of racJ $ legislative history of Section 1981. In consi eri g teenth-century definitions of race, Webster s ic 1877 proved insightful: "[tjhe descendants o a ancestor; a family, tribe, people or presumed to belong to the same stock.  ^,,rtnne-listed "races" found in nineteenth-century e , dias: the Encyclopedia Americana (1858) an t e , Britannica (1878) that inter alia referred to and various other ethnic "races." Similar y, a r . the legislative history of Section 1981 prove co to the Court. It too was "replete with re  s" nniversality of its application"; that is, to all e	r
^his, combined with the nineteenth-century c race as illustrated by reference materials o formed the foundation for the Court s ho mg. based on the history of Section 1981, ^veJj^tect from >n concluding that Congress intended  op^ who are discrimination identifiable classes of p upcause of subjected to intentional discrimination so y riinina. their ancestry or ethnic characteristics, u , j geC. tlQn is racial discrimination that Congress
38. Italian Americans
tion 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory.
The Court's opinion specifically rejected reliance on genetics and/or physical characteristics:
It is clear from our holding that a distinctive physiognomy is not essential to qualify for Section 1981 protection.
  In making this finding, the Court defined the word race" in its sociological, perhaps sociopolitical, rather than biological sense. "Race" in the sociological sense considers the concept that people differ from each other not primarily because of physical attributes, but because of differences rooted in culture. A review of the legislative history of the Act reveals that its supporters intended that its protection be liberally construed, encompassing the civil liberties of all persons without distinction as between race and national origin. Interestingly, the Court's research disclosed that only in this century have "races" been divided physiognomically, that is, "Caucasoid," "Mongoloid" and "Negroid," footnoting that many modem biologists and anthropologists . . . criticize [these] classifications as arbitrary and of little use in understanding the viability of human beings."
The Scelsa Court found that "[djiscrimination on the basis of national origin is encompassed within the scope of activities prohibited by Section 1981." Italian Americans have benefited from this revised standard on a number of occasions prior to Scelsa, although not with the same potential for a sweeping remedy. The District of Maine in DeSalle v. Key Bank of Southern Maine in 1988 was the first Court to hold that Italian Americans are an identifiable class entitled to maintain an action under Section 1981 for purposes of discrimination. In DeSalle, the plaintiff had sued his former employer, alleging breach of contract and violation of civil rights on the basis of his Italian heritage. In accordance with St. Francis College, the Court held that discrimination based on a plaintiffs ancestry was actionable as a civil rights claim under Section 1981. The Court highlighted the references in St. Francis College to various ethnic "races." It concluded:
The definition of race in the nineteenth century, when the legislative sources for Section 1981 were enacted, differed from the definition prevalent today; not all Caucasians were considered of the same race. . . . Section 1981 was designed to protect identifiable classes of persons, such as Italo-Americans, "who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. ..."
In one of the few cases where a plaintiff prevailed on the merits is a 1989 national origin discrimination case. The Ninth Circuit, which is based in San Francisco, held in Benigni v. City of Hemet that Italian Americans are protected against discrimination for purposes of a companion Section 1982 of the 1866 Act, which concerns the right to hold property. The plaintiff, an owner of a restaurant, had obtained a jury verdict claiming that the defendant's police officers had discriminatorily harassed his business and customers forcing him to sell his busi-
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7. ETHNIC LEGACY
ness at a loss. The Court of appeals, in upholding the verdict, agreed:
Elements of an int
