The U.S. Supreme Court adopted an “originalist” approach in deciding, in St. Francis College and Shaare Tefila, respectively, that Congress intended to treat Arabs and Jews as “races” within the meaning of an earlier civil rights statute, the Civil Rights Act of 1866. That is to say, the Court focused on the original intent of the framers of the Civil Rights Act of 1866, as well as the public meaning of the statute at the time that it was enacted, in order to determine how the statute’s provisions should be interpreted today. The Court reasoned that Congress and the public considered groups such as Arabs and Jews to be racially distinct at the time when the statute was passed, even though they are generally considered to be Caucasians today. Some jurists support this methodological approach, known as “originalism,” on the ground that it most faithfully applies the terms to which the democratically elected branches agreed when they passed the underlying statute.

Both cases instructed that Congress had “intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” It was this holding that OCR extended in its 2004 policy, when it announced that it would pursue cases of ethnic or ancestral discrimination targeting groups such as Sikhs, Arabs, and Jews. The concept of “ethnic or ancestral discrimination” is somewhat vague, and it seems intuitively to vary somewhat from the idea of “race.” Judge Richard Posner explained the Court’s use of this concept with admirable lucidity: