BRENNAN, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

481 U.S. 604

Saint Francis College v. Al-Khazraji

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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 CFR § 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.