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FORUM:
WHITNESS AND OTHERS:
MEXICAN AMERICANS AND AMERICAN LAW
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Brown over "Other White":
Mexican Americans' Legal Arguments
and Litigation Strategy in School
Desegregation Lawsuits
Steven H. Wilson
The landmark 1954 decision Brown
v. Board of Education has shaped trial lawyers' approaches
to litigating civil rights claims and law professors' approaches
to teaching the law's powers and limitations.1
The court-ordered desegregation of the nation's schools, moreover,
inspired subsequent lawsuits by African Americans aimed variously
at ending racial distinctions in housing, employment, and voting
rights. Litigation to enforce the Brown decision and similar
mandates brought slow but steady progress and inspired members
of various other minorities to appropriate the rhetoric, organizing
methods, and legal strategy of the African American civil rights
struggle.2
Yet Mexican Americans were slow to embrace the constitutional
substance of Brown. A prominent minority with a history
of successful-ly litigating, they instead drew upon a long line
of favorable judicial opinions to vindicate their own community's
civil rights claims.3
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Several generations
of Mexican American lawyers had won cases and thus established
precedents in both federal and state courts. In the years that
followed Brown, Mexican American lawyers--in numerous complaints,
briefs, and courtroom arguments--continued to rely on this separate
canon. They disregarded Brown's usefulness to achieving
their goals and distanced their clients' particular claims from
the constitutional implications of the Brown decision.
Because the Mexican American lawyers maintained this separate
path, the revolution in civil rights litigation that commenced
with Brown by-passed Mexican Americans until the late 1960s.
In this article, by examining key school desegregation cases and
judicial decisions, I describe why and with what result Mexican
American lawyers avoided making claims under the revolutionary
decision that African Americans and their allies found indispensable
to their fight against racial discrimination. I also describe
how and why the Mexican Americans' legal strategy evolved, primarily
through a line of Texas trials that were in the forefront of a
larger trend, until lawyers finally argued in the late 1960s that
Brown implicitly applied to and condemned the segregation
of Mexican Americans--just as the decision explicitly had applied
to and condemned the segregation of African Americans since the
mid-1950s.4
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The Divide between African and Mexican American Litigation
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The different trajectories of African
Americans' and Mexican Americans' civil rights litigation illuminates
the difference between long-term strategies that support an entire
campaign and arguments that are intended to win individual battles.
The latter can, but by no means must, support the former. Early
in the twentieth century, the founders of the National Association
for the Advancement of Colored People (NAACP) dedicated that organization
to work for the end of the degradation and violence that the racial
caste system engendered. Mark Tushnet tells us that, among its
other efforts, the NAACP conceived a "litigation strategy"
against state-supported racially segregated schools, which it
pursued "from the inception of the campaign in the mid-1920s
to its culmination in the early 1950s."5
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Attorneys
of the NAACP's Legal Defense Fund, Inc. (LDF, or the "Inc.
Fund") aimed first to desegregate graduate programs, including
law schools, then shifted their efforts to the lower grades. They
enjoyed successes and suffered reversals, but steadily laid the
groundwork for victory in Brown, in which Chief Justice
Earl Warren declared for the unanimous U.S. Supreme Court that
race-based public school segregation denied the nation's African
American students the equal protection of the laws, because "[s]eparate
educational facilities [we]re inherently unequal."6
The Court encouraged high expectations in their follow-up decision,
in which the justices charged federal district judges to oversee
locally tailored plans for school desegregation.7
The Brown case, in fact, was at once the culmination of
one long campaign of organized litigation and the beginning of
another struggle, to be fought in and out of the nation's courts,
that aimed to enforce the ruling and so to fulfill the promise
of equal protection embedded in the Fourteenth Amendment.8
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Like that
of African Americans, Mexican Americans' legal activity was shaped
by the experience of living in a Jim Crow society. Yet in most
of the old southern states there were only two racial categories:
"colored" and "white." Under the relevant
statutes in Texas, for example, Hispanic Mexican-descended persons
were, as judges phrased it, members of one of the "other
white races." Mexican Americans faced discrimination by the
dominant Anglos despite an equal status under the law but Mexican
Americans clearly experienced discrimination differently than
did African Americans. Mexican Americans thus responded to discrimination
differently as well. What surprises, looking back from the perspective
of the early twenty-first century, is how often lawyers who established
the Mexican Americans' legal "canon" employed arguments--which
were also based on the Fourteenth Amendment--that called for better
policing of the existing boundaries of Jim Crow, rather than for
the dismantling of the system. Often, the impetus for a suit was
an objection that Mexican Americans had been or were being denied
the privileges of their "whiteness" under Jim Crow.
This generally meant that Mexican Americans stressed that discriminatory
practices that had not been sanctioned by statute were a denial
of due process--rather than a denial of equal protection--guaranteed
under the Fourteenth Amendment.9
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Mexican American
plaintiffs frequently prevailed in their due process claims. Two
drawbacks to this approach emerged over time, however. First,
because they led merely to the maintenance of the status quo,
such victories could not advance the terms of the argument over
Mexican Americans' rights. Second, success bred an overreliance
on the winning arguments. Mexican American lawyers continued to
employ this strategy even as evidence mounted that a legal argument
that had proven to be sound during the Jim Crow era became counterproductive
when Jim Crow was constitutionally doomed. The Mexican American
legal community would not abandon the "other white"
argument for nearly fifteen years. Only in the late 1960s did
they finally seek judicial recognition that Mexican Americans
were an "identifiable ethnic minority in the United States"
and therefore deserving of equal protection.10
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James
DeAnda and the Traditional Approach
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James DeAnda, an attorney at the forefront
of the late-1960s effort to change the terms of the Mexican American
claims from due process to equal protection, himself had often
used the "other white" argument in the courtroom. DeAnda
was born in 1925 in Houston, Texas, to parents who had been among
the thousands of Mexican nationals who migrated north early in
the twentieth century to escape the revolutionary chaos in their
native country. Yet, although the DeAndas were not native-born
Texans, their son had access to the best public education that
the state of Texas offered. DeAnda took his B.A. from Texas A&M
University in 1948 and earned a law degree at the University of
Texas at Austin two years later.11
His ability to attend these two premier public institutions was
unremarkable; middle-class Mexican Americans like DeAnda had been
admitted to Texas A&M and U. T. Austin for years. The coincidence
that the Supreme Court ordered the desegregation of the U. T.
law school, in Sweatt v. Painter (1950), the same year
that DeAnda graduated, underscored that Mexican Americans were
outside the standard racial arguments.12
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DeAnda recalled
decades later that he personally had faced few obstacles in his
college career that he clearly could ascribe to an anti-Mexican
prejudice. Yet, DeAnda made no overt efforts to illuminate his
fellow students if they assumed--as some did, apparently basing
the assumption on his Mediterranean-sounding name and olive complexion--that
he was of Italian, rather than Mexican, descent. DeAnda's experiences
after graduation indicate why he might have chosen to leave mistakes
uncorrected. Like many U. T. law graduates, he applied to the
elite firms in Houston. He saw promising leads vanish unexpectedly,
however, and suspected that the reason was that the prospective
employers had learned that his parents had been born in Mexico.
DeAnda ultimately did find work in Houston, with another Mexican-descended
attorney, John J. Herrera. As he worked with Herrera, DeAnda became
aware that less-privileged Mexican-descended persons faced more
overt and worse discrimination than he had. This led him to support
the economic and social uplift of all Mexican Americans. His support
often took the form of lending professional expertise to litigation
seeking to vindicate Mexican American civil rights.13
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DeAnda was soon introduced to the
peculiarities of making Fourteenth Amendment claims in cases that
involved Mexican Americans--which meant employing "other
white" arguments. A recurring obstacle to these efforts was
the difficulty of demonstrating to an individual judge's satisfaction
that for Mexican Americans the practical results of "otherness"
often trumped the formal status of "whiteness." Lawyers
had to accomplish this tricky business without actually undermining
their general appeal to the privileges that attached to whiteness.
The result was a balancing act, and, ultimately, a self-defeating
constitutional argument. What follows describes how some lawyers,
and DeAnda in particular, came to recognize that "other white"
legal arguments were at a dead-end and demonstrates how they put
the Mexican American civil rights effort back on track by appealing
to Brown.
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Early Legal Status of Mexican Americans
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Race-based discrimination had existed
in customary and eventually in legal form in most realms of American
political, social, and economic life, but it was given the protection
of the U.S. Constitution when the Supreme Court approved statute-mandated
segregation, provided that the separate elements of the system
were formally equal, in the 1896 decision Plessy v. Ferguson.
14
The Texas legislature, in parallel with other state governments,
established the legal framework for Jim Crow prior to Plessy,
and Texas law had conformed to the "separate but equal"
principle even before the Court's decision. In 1893 the legislature
had enacted a statute to provide separate but "impartial"
"public free schools" for "white and colored"
children. The state law defined the "colored" class
to include "all persons of mixed blood descended from Negro
ancestry."15
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These racial
provisions were silent regarding the definition of "white."
However, many persons of northern European descent then held,
based on the popular biases and even scientific rationalizations
that prevailed during much of the twentieth century, that as Hispanics,
Mexicans belonged to the white races, albeit to an inferior branch
in the taxonomy. Mexican Americans were neither required to be
legally separate from nor accepted as socially equal to the Anglo-Saxon
majority.16
As a result, much of the discrimination Mexican Americans experienced
was sanctioned in custom but not supported by statute. Many Mexican
Americans in Texas, for example, faced some segregation in public
accommodations such as restaurants and theaters, in recreation
facilities such as pools and parks, and in jobs, housing, and
public schools--but no legislative action or constitutional provision
categorically condemned every Mexican American in the state to
use only separately maintained facilities in public and even private
institutions. Thus, before 1954, Mexican Americans' courtroom
claims to the privileges of "other whiteness" were pragmatic
responses to the prevailing statutory rules of racial segregation.17
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Establishing
"Whiteness"
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The Mexican Americans' white status
found early judicial support in the case that marks the beginning
of the Mexican American civil rights canon, In re Rodriguez.
The case involved the right of naturalization. The precedent
for granting citizenship to those of Mexican descent was established
in Texas before statehood. After Texas declared its independence
from Mexico, the 1836 Constitution recognized Mexicans living
in the new republic to be citizens. The U.S. Congress in turn
recognized all citizens of that republic to be citizens
when Texas joined the Union in 1845. The Treaty of Guadalupe Hidalgo--which
in 1848 codified the consequences of Mexico's defeat in the Mexican-American
War--transferred Mexico's vast northern provinces to the United
States and stipulated that all inhabitants in the ceded territory,
who did not either leave the territory or announce their intent
to remain Mexican citizens, would after one year automatically
become U.S. citizens.18
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The
right of individuals to United States citizenship as a consequence
of birth on U.S. soil was definitively conferred and the rights
of citizen-ship somewhat clarified by the ratification of the Fourteenth
Amendment in 1868. The power to establish procedural mechanisms
for extending citizenship rights to the foreign-born individuals,
however, remained the prerogatives of Congress. In 1897, a federal
district court in Texas upheld the right of Mexicans to naturalize
under the terms of the Treaty of Guadalupe Hidalgo. Ricardo Rodriguez,
a thirty-seven-year-old native of Mexico who had lived in Texas
for ten years, petitioned to become a naturalized U.S. citizen.
Government attorneys contested his eligibility for naturalization,
on the grounds that Rodriguez was "not a white person, not
an African, nor of African descent." U.S. District Judge Thomas
Maxey made his own taxonomical or anthropological analysis. Maxey
noted, for example, "as to color, [Rodriguez] may be classed
with the copper-colored or red men. He has dark eyes, straight black
hair, and high cheek bones." But, the judge concluded, because
Rodriguez "knows nothing of the Aztecs or Toltecs, [h]e is
not an Indian." "If the strict scientific classification
of the anthropolo-gist should be adopted," Maxey conceded,
"[Rodriguez] would probably not be classed as white."
But, the judge further noted, the constitution of the Texas Republic,
the Treaty of Guadalupe Hidalgo, and other agreements either "affirmatively
confer[red] the rights of citizenship upon Mexicans, or tacitly
recognize[d] in them the right of individual naturalization."
Moreover, Maxey concluded, the stipulations covered "all Mexicans,
without discrimination as to color." Rodriguez was therefore
"embraced within the spirit and intent of our laws upon naturalization."
As historian Mae M. Ngai recently wrote, In re Rodriguez "acknowledg[ed]
the subjectivity of racial identification." Despite his belief
that the plaintiff was probably Indian rather than "white,"
the federal judge bowed to Rodriguez's claim that he was not Indian,
Spanish, or African but "pure blooded Mexican."19
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Judge Maxey's
decision that Mexicans were not excludable on racial grounds became
the basis of Mexican nationals' special status in both U.S. immigration
and naturalization law in the early twentieth century. Nativist
legislators invoked anthropology, scientific racism, and eugenics
to create immigration restrictions linked more directly to national
origin. The passage of the federal Immigration Act (INA) of 1924
contributed to the categorization of immigrant groups around the
notion of whiteness on the side of desirability and eligibility.
Other-than-whiteness, the inability to assimilate because of alien
values, and permanently foreign characteristics were placed on
the side of undesirability and legal excludability.20
But in 1929 U.S. Secretary of Labor James Davis--who, because
immigrants were expected to become workers, had become the federal
government's top bureaucrat on immigration law--advised U.S. Representative
Albert Johnson, a member of the House immigration committee and
a coauthor of the 1924 INA, that a precedent of mass automatic
naturalization in the nineteenth century made it difficult to
apply twentieth-century rules of exclusion to Mexican nationals.
Davis recognized that the enforcement of a race-based immigration
policy was impeded by the vagaries of self-identification. The
secretary told the congressman that, "Mexican people are
of such a mixed stock and individuals have such a limited knowledge
of their racial composition that it would be impossible for the
most learned and experienced ethnologist or anthropologist to
classify or determine their racial origin. Thus, making an effort
to exclude them from admission or citizenship because of their
racial status is practically impossible."21
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Mexican-descended
individuals therefore were given the benefit of the doubt with
regard to legal whiteness. Yet, as Ngai notes, "by the late
1920s, a Mexican 'race problem' had emerged in the Southwest,
impelled by contradictions wrought by the burgeoning of commercial
agriculture, an all-time high in Mexican immigration, and the
formation of a migratory, landless agricultural proletariat and
of segregated communities."22
Because immigration policy was implicated in the Southwest's emerging
agricultural economy, Congress was reluctant to impose strict
quotas on Mexican immigration or to exclude Mexicans on racial
grounds. Nonetheless, civil servants did develop categories of
difference that were often simultaneously national, geographical,
and racial. In 1930 the Census Bureau enumerated Mexicans as a
separate race, specifically, as persons born in Mexico or with
parents born in Mexico and who were "not definitely white,
Negro, Indian, Chinese, or Japanese."23
The Mexican government protested the U.S. government's creation
of this separate racial classification. To lessen international
tension, the 1940 Census reclassified persons of Mexican descent
as "white" if they were not "definitely Indian
or of other nonwhite race."24
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LULAC and the First Mexican American Suits against Segregation
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In this social, political, legal,
and diplomatic context Mexican Americans organized a number of
civic groups that were specifically formed to fight discriminatory
practices against their own community. Business leaders created
the League of United Latin American Citizens (LULAC) in 1929,
for example, at the height of a nativist movement in the U.S.
that fostered the revival of the Ku Klux Klan and led the federal
government to create a comprehensive regime of immigration controls.
The founders of LULAC aimed to integrate Mexican-descended persons
into the U.S. mainstream, that is, to "Americanize"
the community. LULAC's constitution called for members to be loyal
citizens. It also stressed the importance of learning English.25
Hector P. Garcia, a Corpus Christi physician and World War II
veteran, founded the American G.I. Forum (AGIF) in 1948 in order
to promote Mexican American veterans' interests, welfare, and
equal treatment by Anglos.26
When demonstrations of civic spirit and patriotism failed to lower
the barriers to equality with Anglos, Mexican Americans resorted
to litigation. Although neither AGIF nor LULAC established a litigation
arm akin to the NAACP's LDF, both occasionally gave support to
lawsuits seeking to protect Mexican American rights.27
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The race-conscious
Jim Crow laws remained silent regarding the segregation of schoolchildren
of Mexican descent. But Texans had developed a way to close this
loophole. In 1905, the legislature had enacted a statute that
provided: "it shall be the duty of every teacher in the public
free schools . . . to use the English language exclusively, and
to conduct all recitations and school exercises exclusively in
the English language."28
Many Anglo school officials believed, or at least pretended to
believe, that all Mexican-descended students lacked English proficiency.
These provisions led to the creation of separate classrooms for
the students with Spanish surnames, or even designated "Mexican
schools." By the time LULAC was organized, approximately
ninety percent of the public schools in South Texas were segregated
according to the "Anglo" or "Mexican" enrollment.29
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In 1930,
LULAC filed the first suit to challenge the segregation of Mexican
Americans. The state judge who heard the case expressed a certain
civic pride that he would be the first judge to address the legality
of segregating Mexican Americans. He began his opinion, for example,
by acknowledging that: "It is to the credit of both races
that, notwithstanding widely diverse racial characteristics, they
dwell together in friendship, peace, and unity, and work amicably
together for the common good and a common country." He added,
moreover, that "[i]t is a matter of pride and gratification
in our great public educational system . . . that the question
of race segregation, as between Mexicans and other white races,
has not heretofore found its way into the courts of the state.
. . ."30
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The facts
of the case were simple. Del Rio, a town on the Rio Grande, operated
an elementary school exclusively for Mexican-descended children,
although no statute authorized the Del Rio Independent School
District (ISD) to do so. LULAC-sponsored attorneys sought a state
court injunction to end the segregation. The Del Rio ISD superintendent
justified the segregation by noting that many of the Mexican American
children in question were from migrant families who worked on
distant farms well into the school term. Because Anglo children,
most but not all of whom were not the children of migratory
workers, would have several months advantage in class, migrant
students would suffer from low esteem if measured against their
standard. Also, he claimed, migrant students' persistently lower
English language proficiency resulted in similar damage to their
morale. The superintendent claimed that the segregation was not
race based, but offered "fair opportunity" to all children.
Segregation, he argued, benefited all students by meeting each
group's "peculiar needs." Despite this contention, he
admitted that Anglo migrant students who entered school late each
term were not segregated.31
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The state
court refused to enjoin the Del Rio ISD. The LULAC lawyers appealed,
and in Del Rio ISD v. Salvatierra the Texas Court of Civil
Appeals held that public school officials could not "arbitrarily"
segregate their Mexican American students solely based on ethnic
background. The segregation practiced by the Del Rio ISD was unacceptable
since "the rules for the separation are arbitrary [and] applied
indiscriminately to all Mexican pupils . . . without apparent
regard to their individual aptitudes . . . while relieving children
of other white races from the operation of the rule."
But the court rejected LULAC's request for an injunction, because
"to the extent that the plan adopted is applied in good faith
. . . with no intent . . . to discriminate against any of the
races involved, it cannot be said that the plan is unlawful or
violative even of the spirit of the constitution."32
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Many Texas
districts continued to apply the linguistic separation criteria
indiscriminately, the Salvatierra decision notwithstanding.
Segregation of Mexican American children on purported linguistic
grounds became rooted even more deeply in the Southwest.33
On its face, the ruling was a win for LULAC. Yet, because the
segregation was motivated by and perpetuated an apparently benign
distinction--the "fact" that Mexican Americans were
culturally incompatible with Anglos (as Mexicans and Spanish speakers,
but also as migrant farm workers)--George A. Martinez has concluded
that this 1930 victory "dealt a serious blow to the struggle."34
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The
next notable suit Mexican Americans filed featured an example of
cooperation between LULAC and NAACP's LDF. Like the Del Rio ISD
in Texas, the Westminster, California, school district maintained
segregated classrooms for its Mexican-descended children.35
LDF attorney Robert L. Carter contributed an amicus brief
when the case was heard in a federal court in 1946. The case was
a "useful dry run" that allowed LDF to test some of the
arguments it would later use in Brown without risking a reversal.36
Indeed, in what one commentator labeled a "strikingly similar"
precursor to the Brown decision's condemnation of "separate
but equal," the federal judge ruled that equal protection requirements
can not be met merely by providing "separate schools [that
had] the same technical facilities." Because "[a] paramount
requisite in the American system of public education is social equality,"
the judge stated, all classes "must be open to all children
by unified school association regardless of lineage."37
He suggested that "commingling of the entire student body"
was appropriate in the aftermath of the recently concluded war--a
war against racism and fascism--because "commingling . . .
instills and develops a common cultural attitude among the school
children which is imperative for the perpetuation of American institutions
and ideals."38
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The U.S.
Court of Appeals for the Ninth Circuit, on the state's appeal,
upheld the district judge's decision for the plaintiff Mexican
Americans. The circuit judges were less critical of the doctrine
of "separate but equal," however, and also less sanguine
on the supposed benefits of "commingling." The appellate
judges instead reasoned that, because California's "Jim Crow"
statutes (like Texas laws) did not expressly mention Mexican Americans,
separation denied them due process and hence equal protection.
The court ruled against the school district only because the administrators
had acted beyond statutory authority. The judges declared that
they were "aware of no authority justifying any segregation
fiat by an administrative or executive decree [since] every case
cited to us is based upon a legislative act."39
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Language Segregation, Language Testing
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The plaintiffs prevailed. But the Ninth
Circuit court also suggested that the Mexican American children
could be segregated if the legislature authorized separate schools
for them. The California situation could by statute be made indistinguishable
from the Jim Crow system that the U.S. Supreme Court had upheld
in Plessy. The Ninth Circuit judges echoed the Del Rio
case by noting that language deficiencies in "children of
Mexican ancestry . . . may justify differentiation by public school
authorities in the exercise of their reasonable discretion as
to the pedagogical methods of instruction . . . and foreign language
handicaps may . . . require separate treatment in separate classrooms."40
With the Ninth Circuit's support for language segregation in Mendez
and implied endorsement of segregation as long as it was rooted
in statute, Mexican Americans grew dependent on legal arguments
that relied heavily on alleged advantages derived from their "white"
status.41
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Texas was
in the federal Fifth Circuit, and its Jim Crow laws were not directly
affected by a ruling in the Ninth Circuit. Price Daniel, the Texas
attorney general and a future governor, nevertheless issued an
advisory opinion inspired by the court's dicta. He forbade
automatic, blind segregation of its Mexican-descended pupils,
but continued to justify the maintenance of separate classes for
"linguistically deficient" students.42
Daniels' advisory opinion became an issue in the next suit that
Mexican Americans filed in Texas, Delgado v. Bastrop ISD. 43
U.S. District Judge Ben C. Rice of the Western District of Texas
decided that linguistic segregation in the Bastrop school district,
located near Austin, violated the Fourteenth Amendment because,
as it was implemented, Bastrop's segregation was "arbitrary
and discriminatory." Like Price Daniel, Judge Rice did not
criticize all language segregation. But he declared that the Bastrop
district could segregate any individual student--Anglo or Mexican
American--only after school authorities had determined the students'
English proficiency through "scientifically standardized"
examinations.44
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The Texas
state superintendent of public instruction subsequently announced
to all school officials that he was "glad to be able to tell
you that arrangements have been made for the official tests to
be used to comply" with Judge Rice's Delgado decision.45
The "Inter-American Test in Oral English" was to be
administered to "[a]ll pupils in the white school, irrespective
[sic] of their language ability." Students in the same grade
were to be given the same test at the same time, and "[t]here
must be no discrimination at any time in the testing program."
The superintendent spec-ified, for example, that even children
of migrant farm workers entering school four months behind the
rest of the grade were to be tested with all students who entered
at that time. Anglo migrant children were therefore to be measured
against Mexican Americans from a similar background. This effort
would preserve the objective basis of comparison, since "[t]he
tests are 'scientifically standardized' as required by the court
decision."46
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The superintendent
was not directing all district school officials to administer
the exams. Testing should be undertaken "only in those schools
desiring to divide first year children unable to follow instructions
in English, from the children who are able to follow such instructions."47
After describing the plan to comply with the federal court order,
the state's chief school officer wrote that he trusted that superintendents,
principals, and teachers "will move forward courageously
and harmoniously, without prejudice, and without bitterness, as
we strive to work out for ourselves a more practical democracy."48
Most districts either ignored the mandate, or set standards that
made it extremely easy for school administrators to prevent any
Mexican Americans from sharing public classrooms with Anglo Americans.49
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First Steps against Jury Discrimination
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James DeAnda's colleague John Herrera
was a general practitioner, that is, a lawyer who both accepted
criminal defense work and represented clients in civil cases.
In 1951 Herrera and DeAnda defended a client in his murder trial
in Fort Bend County, adjacent to Houston's Harris County. Aniceto
Sanchez was convicted and received a ten-year sentence. The attorneys
appealed on the grounds that there were no Mexican American grand
jury commissioners or grand jurors in the county. Herrera and
DeAnda sought to demonstrate that this was the result of "a
systematic, continual, and uninterrupted practice in Fort Bend
County of discriminating against the Mexican Americans as a race,
and people of Mexican extraction and ancestry as a class."
To indict, try, and convict Sanchez under those circumstances
had been, they argued, "a violation of the due process clause."
Herrera and DeAnda filed what Judge Beauchamp of the Court of
Criminal Appeals of Texas noted was "quite an exhaustive
brief" in the case. In it, they described pronouncements,
including judicial rulings from other jurisdictions, that had
"either intentionally or loosely, refer[red] to Mexican people
as a different race." But the appellate judges stood firm
on the distinction. Beauchamp spoke for the court on 21 November
1951, declaring that the Mexican people "are not a separate
race but are white people of Spanish descent, as has often been
said by this court. We find no ground for discussing the question
further."50
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DeAnda and
Herrera soon had an opportunity to sharpen this argument and try
it again with a new client. Pete Hernandez was a migrant cotton
picker who in 1952 was convicted of murder in the district court
of Jackson County and sentenced to life in prison. Herrera and
DeAnda obtained financial support for their subsequent appeal
from both LULAC and AGIF and sought legal assistance from two
more experienced attorneys from San Antonio, Carlos C. Cadena
and Gustavo C. "Gus" Garcia. Cadena and Garcia now also
argued that Hernandez was discriminated against during his trial
because Mexican-descended individuals were deliberately and systematically
excluded from both the grand jury that returned the indictment
and from the petit jury that tried the case. To support their
contention that the exclusion of Mexican Americans from the juries
must have been deliberate, Cadena and Garcia obtained a stipulation
from the state and county attorneys that there were males of "Mexican
or Latin American" descent in Jackson County who were eligible
to serve as members of either a commission or a jury. The state
and county attorneys also agreed to stipulate that, at least during
the previous twenty-five years, no one with a Spanish surname
had served on a jury commission, grand jury, or petit jury in
Jackson County.51
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Cadena and
Garcia extended slightly Herrera's and DeAnda's arguments by claiming
that the logical result of a denial of due process was denial
of equal protection. When they presented the case before the Texas
Court of Criminal Appeals, Cadena and Garcia sought to appropriate
a "rule of exclusion" that the U.S. Supreme Court had
announced in Norris v. Alabama (1935). Alabama's state
supreme court had let stand the conviction of Clarence Norris--one
of the nine black "Scottsboro Boys" who had been convicted
of the rape of two white women--despite the exclusion of African
Americans from both the grand and petit juries. The U.S. Supreme
Court had reversed, ruling that state action, whether by the legislature,
courts, or executive, to exclude from jury service "all persons
of the African race, solely because of their race or color,"
when the same were both available and qualified to serve, had
denied "a person of the African race" the equal protection
of the laws and was contrary to the Fourteenth Amendment.52
Cadena and Garcia sought to persuade the Texas court to apply
this reasoning to Mexican Americans. The failure to do that, they
said, would be tantamount to extending "special benefits"
to blacks.53
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The Texas
appellate judges refused to extend a U.S. Supreme Court ruling
concerning race-based jury discrimination in order to apply that
decision to the present case involving allegations of ethnicity-based
discrimination. The Court of Criminal Appeals had heard a similar
case in the early 1940s and had written then that "[i]n the
absence of a holding by the Supreme Court of the United States
that nationality and race bear the same relation, within the meaning
of the [equal protection clause of the Fourteenth Amendment],
we shall continue to hold that . . . in the absence of proof showing
express discrimination by administrators of the law, a jury so
selected in accordance [with the statute] is valid."54
In Hernandez's case, the appellate judges quoted that earlier
opinion to support their declaration once more that the equal
protection clause of the Fourteenth Amendment contemplated and
recognized only two classes: the white race comprising one, and
the Negro race comprising the other. As they had said in Sanchez
v. State, the appellate judges reiterated that "Mexican
people are not a separate race but are white people of Spanish
descent." The judges noted that, moreover, "no member
of the Mexican nationality challenges that statement." It
appeared to the appellate judges that Cadena and Garcia sought
to have the state courts recognize Mexicans to be a "special
class" within the white race that was entitled to enjoy the
"special privilege" of a trial by juries that included
Mexican Americans.55
The Court of Criminal Appeals rejected Cadena's and Garcia's argument.
Mexicans were white people, the judges said, who were entitled
to all the rights, privileges, and immunities guaranteed under
the Fourteenth Amendment. In the absence of proof of actual discrimination
in the organization of juries, therefore, it could not be said
that Hernandez had been denied equal protection of the law.56
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With LULAC
and AGIF still paying the fees and with Herrera and De-Anda listed
as "of counsel," Cadena and Garcia appealed Hernandez's
murder conviction to the U.S. Supreme Court.57
In their arguments, Cadena and Garcia moved farther away from
the "other white" strategy of earlier school cases.
They attempted to demonstrate that the Anglos in Texas considered
persons of Mexican descent to be a separate, subordinate group,
"distinct from 'whites.'" Cadena and Garcia argued that
Mexican American separateness had resulted from Anglo biases in
action, not Texas laws on the books. They quoted "responsible
officials and citizens" who admitted that Anglo Texans distinguished
"white" from "Mexican." Cadena and Garcia
referred to the effect of the Delgado decision and noted
that "until recently" children of Mexican descent were
required to attend a segregated school for the first four grades.
Finally, the attorneys explained to the justices how jury selection
in Texas eliminated Mexican Americans from jury consideration.
They showed that the county commissioners selected potential jurors
from a list of property taxpayers. Although the names of many
Mexican Americans were included on tax rolls as "citizens,
householders, or freeholders," those names never appeared
in the jury selection pool. This demonstrated that--as Cadena
and Garcia had argued before the state appellate judges--the qualified
Mexican Americans must have been excluded on the basis of their
Spanish surnames.58
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Attorneys
arguing for the State of Texas continued to deny that the mere
reliance on a list of names might facilitate the systematic discrimination
that Cadena and Garcia were charging. Texas's lawyers restated
the conventional argument that "there are only two classes--white
and Negro-within the contemplation of the Fourteenth Amendment."
But the justices were convinced by Cadena's and Garcia's evidence
that "just as persons of a different race are distinguished
by color, these Spanish names provide ready identification of
the members of this class." The Supreme Court announced its
decision in Hernandez v. Texas on 3 May 1954--exactly two
weeks before the justices announced their decision in Brown
v. Board of Education. Chief Justice Earl Warren spoke
for the unanimous Court to reverse Hernandez's conviction, because
the justices had concluded that the "systematic exclusion
of persons of Mexican descent from service as jury commissioners,
grand jurors, and petit jurors" had indeed deprived him of
due process and equal protection of the laws. The Court condemned
this practice as obvious discrimination of "ancestry or national
origin."59
Warren noted further that: "[t]hroughout our history differences
in race and color have defined easily identifiable groups which
have at times required the aid of the courts in securing equal
treatment under the laws." And because "community prejudices
are not static . . . from time to time other differences from
the community norm may define other groups which need the same
protection." Whenever the existence of "a distinct class"
could be demonstrated, the chief justice continued, and it can
be shown that the laws "as written and applied, single out
that class for different treatment not based on some reasonable
classification, [then] the guarantees of the Constitution have
been violated."60
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The NAACP's
LDF lawyers finally achieved their own longstanding objective
two weeks later, when the unanimous Supreme Court announced its
decision in Brown. Although the cases are not explicitly
linked, the Court's reliance on the equal protection clause in
both Hernandez and Brown invite association. Yet,
it is worth noting that in Hernandez both the Texas and
the Mexican American lawyers argued that Mexican Americans were
in fact legally white. The successful conclusion of Hernandez
on that basis seemed to justify continued reliance on the
"other white" arguments derived from due process jurisprudence.
Hernandez committed Mexican Americans to defending their
whiteness in future litigation, led them to discount the utility
of Brown, and kept them too long on what proved to be an
unfruitful constitutional path.61
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The Limitations of "Other White" Litigation
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The Hernandez jury decision,
the Delgado school decision, and other decisions in the
line of "other white" cases were rather limited victories.
This was illustrated further when Mexican American parents decided
to sue the Driscoll Consolidated Independent School District (CISD),
a small rural system in south Texas that enrolled fewer than three
hundred students.62
DeAnda had moved from Houston to Corpus Christi at the suggestion
of AGIF founder Hector Garcia and soon became the lead plaintiffs'
attorney. Given the facts of the case, it is understandable why
he did not see Brown as potentially any more useful than
the older precedents. Since at least 1949, after the Delgado
opinion, the Driscoll CISD had no separate restrooms, cafeteria,
buses, or playgrounds for Anglos and Mexican Americans. During
first and second grade, however, Mexican Americans were still
being taught in separate Spanish language classrooms. In addition,
the district required the Mexican Americans to spend four years
in the first grade before promotion to a segregated second grade,
where they also spent several years. The result--and Mexican American
lawyers would argue that this was the intended result--was that
the Mexican American students, many of whom were children of migrant
farm workers, reached the third grade at the very age when many
dropped out to join their families in the fields. The few who
stayed in school shared the classroom with Anglo students who
were several years younger. After LULAC had threatened in 1955
to file suit to challenge this practice, the Driscoll CISD "experimentally"
reduced the period of first grade "linguistic" segregation
to three years.63
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In September
1955, nine-year-old Linda Perez enrolled in the Driscoll CISD
and was promptly placed in the "Mexican" class. DeAnda
accompanied the Perez family to the school the next day. He informed
the administrators that Linda's parents had taught their daughter
to speak English and, in fact, deliberately spoke no Spanish at
home. DeAnda demanded that the school superintendent shift her
to the English-speaking class.64
The superintendent complied, but DeAnda soon discovered many other
English-speaking students in Mexican classes; in fact Linda Perez
was the only Mexican American the superintendent had allowed into
an English-speaking first grade classroom during the dozen years
that he had been running the Driscoll district. Despite Delgado,
teachers assessed English aptitude without exams and apparently
assumed that no Mexican American student could speak or understand
English. DeAnda contacted parents and sought assistance from Gus
Garcia and the AGIF. In November, DeAnda filed suit in the Corpus
Christi division of the U.S. District Court for the Southern District
of Texas. Veteran U.S. District Judge James V. Allred, who prior
to his appointment to the federal bench had served as attorney
general and then as governor of Texas, presided in the case. The
lawsuit, Hernandez v. Driscoll CISD, was the first post-
Brown school desegregation case to be brought on behalf
of Mexican Americans.65
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DeAnda sought
to enjoin the Driscoll school board from continuing the segregation
that he contended was maintained on ethnic rather than linguistic
criteria. In his complaint, he claimed that Driscoll CISD officials
had acted "under color of custom, common design, usage or
practice" to deprive children of Mexican descent of privileges
and immunities guaranteed under the Fourteenth Amendment.66
DeAnda argued that Mexican American students were deprived of
the "educational, health, psychological and recreational
benefits provided . . . for other school children."67
Driscoll CISD's attorneys denied that the school district discriminated
on the basis of ancestry and argued instead that separation of
children who could not speak English had long been accepted as
necessary.68
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DeAnda's
pretrial memorandum concisely described the legal grounds for
the lawsuit and also clearly revealed his perception that Brown
had changed little for Mexican Americans. He stated that,
according to earlier judicial rulings, if "Mexicans, being
members of the Caucasian or Caucasoid race," were segregated
in separate buildings or classes, they were being denied equal
protection of the laws. This had been the settled law "even
before" the Supreme Court ruled, in Brown, that "segregation
of children based on race pursuant to statutory or State constitutional
authority violated the [Fourteenth] Amendment." DeAnda referred
to the Brown decision only to dismiss its relevance. Instead,
he resorted to the Hernandez decision for support, noting
that the Court "held untenable the argument of the State
of Texas that discrimination within the white race did
not violate the equal protection clause." With Hernandez
available, Brown was not needed, as DeAnda argued,
because "the instant cases do not raise the problems present
in the Negro cases. There is present in these cases no question
of segregation because of race."69
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DeAnda carefully
distinguished between these two landmark equal-protection decisions
for two reasons. First, Brown was about race segregation,
which he considered inapplicable to the Mexican American complaint,
while Hernandez specifically referred to national origin.
Second, the Brown decision was concerned only with statutory
segregation (de jure), while Hernandez had condemned
discriminatory practices never authorized by statute (de facto).
Because he was not contending that the segregation in Driscoll
CISD was race based, or that a Texas law authorized it, Brown
simply did not appear to be a useful precedent. It was actually
a well-considered strategy. If DeAnda relied too heavily on Brown,
he risked losing if the judge decided that differences between
Brown and the present case overrode resemblances. However,
after arguing for these distinctions, De-Anda indicated that he
would happily accept support from Brown if Judge Allred
chose to view the case as favorable precedent. He concluded his
brief by stating "cases which have dealt with segregation
of Mexican school children control here even without the reinforcement
given them by the Supreme Court's segregation decisions."
DeAnda would refer to Brown, as well as the Court's earlier
graduate school desegregation decisions, only sparingly, and only
to invoke the general support those cases provided his own case
through its discussion of the intangible benefits brought about
by contact between students of diverse backgrounds.70
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On the first
day of the pretrial proceedings in late February 1956, Allred
asked DeAnda outright if he was seeking to enjoin all linguistic
segregation. DeAnda said no: he agreed that there were often good
reasons for keeping Spanish-speaking children segregated until
they could speak and understand English. He objected to automatic
and extended segregation of these children on the excuse that,
because they were of Mexican-descent or belonged to migrant families,
they could not be as familiar with English as the Anglo students,
who were automatically placed in English-speaking classes.71
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DeAnda examined
trustees and teachers of the Driscoll CISD to establish the extent
of the district's segregation. None disputed the fact that it
was the policy to segregate Mexican American students for three
years in the first grade.72
The issue for the judge to decide was whether Driscoll CISD's
system was arbitrary and therefore discriminatory. DeAnda brought
in a number of the school's Mexican American students to testify,
so that Allred could see for himself that they spoke English as
well as any Anglo primary schooler. The judge asked the lawyers
to waive their rights to make closing statements and to submit
briefs instead. But, before he closed the proceedings, Allred
gave, as he put it, "some indication of my thinking at the
present time." Allred recognized that there might be reasonable
bases for maintaining separate classes for beginners. However,
the judge said, even if there were sound justifications behind
the policy of holding back non-English speakers "for the
first year, or a portion of the year . . . I think any treatment
of these students as a class beyond that is unreasonable and discriminatory,
any treatment that does not take into consideration the ability
of the individual student."73
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Judge Allred
also had a warning for DeAnda and for future plaintiffs. "In
the long run," he said, "I don't know whether you are
going to be able to accomplish a great deal by lawsuits or not.
Considerable progress has been made, you say, as a result of lawsuits.
I don't know." Moreover, the judge continued, "I don't
know whether the courts should undertake the monumental job of
trying to determine the justice [or] injustice of the treatment
of particular students. I don't want to dictate to a school the
method they should follow. I don't think I have the right to do
that."74
As he stated his reluctance to dictate a drastic remedy, Allred
also revealed his sympathy for the plaintiffs.
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[T]his method is unreasonably discriminatory
and violative of a particular plain-tiff's or particular group
of plaintiff's rights. I know that any treatment of these people,
on the basis that they are of Latin extraction, as a group,
or treating an individual that way because he happens to come
from that group, is, on its face, discriminatory and based on
an unreasonable basis. It can't stand.75
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"I am just telling you what I am thinking
off hand," Allred concluded. "It is not final. You can
direct your arguments to those points if you want to."76
He had briefs in hand by December.77
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DeAnda did not ask for a total and immediate end to language segregation.
Rather, he requested that Judge Allred order the Driscoll CISD trustees
to end the current system, to maintain no separate classrooms beyond
the first grade, to separate first grade children only after proper
scientific tests, and to move a separated student to the English-speaking
class after he or she showed sufficient understanding.78
DeAnda invoked Brown only once in his closing brief, in reply
to Davis's brief. Davis had argued that the judge should allow the
district administrators to follow their own "good faith"
judgment about what was best for the children. Davis cited testimony
by Mexican American children that they were happy with the present
arrangement and would only become more aware of their language deficiencies
should they be placed in a class with native English speakers.79
In response, DeAnda suggested that Davis "cannot conjure a
more emphatic method of emphasizing or creating differences than
by the policy of segregation" at Driscoll CISD. DeAnda suggested
that his limited plan was "more than justified under the evidence
. . . and actually benign, in light of the holding in Brown."80
Once more, he used Brown as a negative comparison, not a
model argument. Finally, however, DeAnda quoted Brown positively,
to stress the Court's decision that separate education was "inherently
unequal."81
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On 11 January 1957, Allred's memorandum opinion condemned Driscoll
CISD's practices. Because the district had clearly violated existing
rules and the plaintiffs' were seeking only to force compliance
with them, Allred limited himself to restatements of earlier rulings.
The segregation of Mexican Americans was permissible as long as
the criteria for separation were not arbitrary. He referred to the
ruling in Delgado that language handicaps might justify segregation
only upon a credible examination and declared the Driscoll method
of administering segregation was "not a line drawn in good
faith." The first and second grade segregation at Driscoll
CISD was "unreasonable race discrimination against all Mexican
children as a group." "If scientific or good faith tests
were given the result might not weigh so heavily," but
"when considered along with the other facts and circumstances
. . . it compels the conclusion that the grouping is purposeful,
intentional and unreasonably discriminatory."82
Allred enjoined the Driscoll CISD as De-Anda had requested on 15
March and ordered that a new system of assigning students should
begin operating by the next academic year, 1957-1958, giving "the
school authorities ample time to formulate a program accord-ingly
without undue interference with its current work."83
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Maintaining "White" Status
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The ruling in Driscoll
did not condemn public school segregation or other discriminations
against Mexican American Texans that were not contrary to Texas
statutes. For that reason, some scholars of the Mexican American
civil rights struggle have criticized Allred for allowing language
discrimination to continue. George A. Martinez, for example, complained
that the judge relied on stale reasoning and outmoded precedents
to permit language segregation despite "clear evidence that
school officials used the linguistic rationale as a pretext for
segregating Mexican Americans from Anglos." He added that Judge
Allred could have relied on Brown to prohibit segregation
altogether.84
This criticism is untenable in light of the case record. Once in
court, it had proved elementary for DeAnda to demonstrate to Judge
Allred's satisfaction that the administrators had been acting contrary
to Texas statutes when they grouped the Spanish-surnamed English
speak-ers with Spanish speakers. Given the ready availability of
legal arguments that also led to the Fourteenth Amendment, DeAnda
realized that there was no benefit in citing Brown. Indeed,
DeAnda specifically denied that the plaintiffs sought to have Judge
Allred consider their clients' claims in light of the Brown decision.
Only subsequent events would prove these arguments to be inadequate,
and when they had done so, DeAnda was among the first to retool
the arguments and find a place for Mexican Americans under the Brown
umbrella. His shift did not occur, however, until the late 1960s.
The substantial investment in time, energy, and legal costs only
brought the enrollment of a few dozen Mexican American children
in the Anglo classrooms of Driscoll CISD. The limited benefits of
"due process" victories did not justify this investment.
For that reason, Hernandez v. Driscoll CISD was the last
school desegregation suit that Mexican American civil rights advocates
filed for a full decade.85
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Mexican Americans maintained their hard-won "white" status
as late as mid-1966 when DeAnda resumed school desegregation litigation
after nearly a decade's hiatus.86
In the new suit, he sought an injunction to end "ability tracking"
in the Odem Independent School District near Corpus Christi. Officials
in the Odem ISD assigned students to classes according to past performance,
measured aptitude, or a teacher's estimate of a student's potential.
The district had established two separate "tracks," one
for the college-bound and another for the "terminal" high
school students. Students of Mexican descent dominated the latter
category. In his complaint DeAnda relied on the precedents he had
helped establish in the 1950s. The most recent of these was still
his successful 1957 lawsuit to enjoin the segregation of Mexican
American elementary students in the Driscoll CISD. DeAnda had argued
in that case that the Driscoll CISD officials segregated Mexican
Americans on the basis of inaccurately administered tests purporting
to assess English-language competence, or without administering
any tests. He had convinced U.S. Judge James Allred that this was
an arbitrary system that denied the due process guaranteed in the
Fourteenth Amendment.87
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Ten years after his victory over the Driscoll CISD, therefore, DeAnda
faced essentially the same discrimination in different guise at
Odem ISD, and he attacked it in essentially the same fashion with
well-worn weapons. In June 1967, when he wrote the brief in support
of his motion for summary judgment, he charged that assignments
at Odem ISD were made without testing or else without testing Anglo
as well as Mexican American students. When aptitude tests actually
were administered, he wrote, principals or teachers who lacked the
expertise properly to evaluate results made track assignments that
perpetuated the Mexican American segregation. DeAnda's thinking
was stalled at the "other white" strategy Mexican Americans
had relied on for decades. He once again based his legal argument
against segregated conditions on the due process clause. If he had
attempted to base his complaint on an equal protection rationale,
and had been able to convince the judge to accept the claim, DeAnda
could have sought the sort of expansive court-ordered remedy sanctioned
by Brown. But in his brief, as before, DeAnda only mentioned,
without explicitly invoking, Brown. As a consequence, when
U.S. District Judge Woodrow B. Seals enjoined the Odem ISD ability
tracking system on 28 July 1967, he did so solely on the basis of
the due process violation. The judge's holding implied that, if
Odem ISD administrators commenced proper testing and evaluation,
they could resume tracking.88
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The Turn toward Politics, the Growth of Militancy
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Mexican American
civil rights activists had not been idle during the ten-year hiatus
between the Driscoll and the Odem suits. Recognizing that litigation
was not a certain or cost-effective method of obtaining reform,
however, Mexican American organizations had all but abandoned it
and instead sought increased political power. They achieved notable
influence in the Democratic Party in 1960, when John F. Kennedy--during
his hard-fought presidential campaign against Richard Nixon--depended
on a massive "Viva Kennedy" project to deliver crucial
votes in south Texas that he needed to win. The successful effort
left the administration in debt to Mexican Americans in Texas.89
President Kennedy paid that debt in short order. The death of Judge
Allred in July 1959 left vacant one of the four judgeships in the
federal Southern District of Texas. Kennedy announced his intention
to appoint a Mexican American. Liberal Mexican American leaders,
who had supported U.S. Senator Ralph Yarborough in his struggles
with the conservative Lyndon Johnson for leadership of the Democratic
Party in Texas, lobbied for state district judge Ezequiel D. Salinas
of Laredo. The liberals even suggested DeAnda as an alternative
for the federal court appointment.90
As the new vice-president, Johnson was able to convince Kennedy
to appoint Reynaldo G. Garza, a longtime Johnson friend and political
ally in South Texas.91
In April 1961, fewer than three months after Kennedy's inauguration,
Garza assumed Allred's seat and became the first Mexican American
federal judge in history.92
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The Mexican Americans' political efforts yielded other notable rewards
during the 1960s. They welcomed the election of Henry B. Gonzalez
of San Antonio, another Johnson man, to the U.S. House of Representatives
in 1961. Two years later, the Political Association of Spanish Speaking
Organizations (PASSO, or PASO), founded around 1960, orchestrated
a brief Mexican American domination of the municipal government
in Crystal City, Texas.93
The Crystal City affair showed that, although Mexican Americans
seemed complacent with regard to the politics of race, the dissenting
spirit of the decade also animated many members of the liberal middle
class. In spring 1966, for example, fifty Mexican American lead-ers
exited from a conference hosted by the federal Equal Employment
Opportunity Commission because they perceived that EEOC planners
were preoccupied with African Americans and had not placed Mexican
Americans concerns on the agenda. Mexican Americans began to complain
that, as president, Lyndon Johnson seemed to be taking their support
for granted.94
The early results of the exodus were gratifying for those leaders
who worried that by the 1960s Mexican Americans had become the "Minority
Nobody Knows."95
Johnson created an Inter-Agency Committee on Mexican American Affairs,
promised to host a White House conference to study discrimination
in the Southwest, and stepped up efforts to appoint Mexican Americans
to government panels. In order to fulfill this last promise, soon
after the walkout, the president appointed Dr. Hector Garcia, the
founder of AGIF, to be the first Mexican American member of the
U.S. Commission on Civil Rights.96
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Notwithstanding such political rewards in the decade after Brown,
their stubborn embrace of "white" status prevented
Mexican Americans from grappling with the practical distinction
between the de jure segregation of African Americans that
the Supreme Court had condemned in Brown and the de facto
segregation of Mexican Americans that prevailed in the Texas
public schools.97
Many Mexican Americans continued to face social discrimination,
economic hardship, and inferior education because of their ethnic
heritage. Historic disabilities were not lifted by the personal
and professional gains of elites like Judge Garza, Commissioner
Garcia, and Representative Gonzalez. As a result, dissatisfaction
simmered during the 1960s, especially among younger Mexican Americans
who perceived that the struggle towards social, political, and legal
equality had stalled. Civil rights demonstrations and marches were
flowering in the South, the Black Power movement was emerging in
the North, and antiwar activism was energizing campuses across the
nation. But Mexican American youth found themselves at a loss for
similar opportunities to show their dissatisfaction. After farm
workers in California, Texas, and elsewhere marched against unfair
wages, dangerous working conditions, and poor treatment, however,
both working-class barrio-bound, and middle-class college-bound,
Mexican Americans counted among a handful of heroes and role models
César Chávez, who had begun to organize farm workers
of all nationalities during the 1950s. The heroic image of impoverished
but selfless farm workers--many of them Mexican or Mexican American--struggling
against corporate growers and defying official repression appealed
to many Mexican Americans who came of age during the militant 1960s.98
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By the mid-1960s, discrimination against Mexican Americans in Texas
inspired students at the state's predominately Mexican American
campus-es--including St. Mary's University in San Antonio and Texas
A&I University in Kingsville--to reject their parents' ideals
and embrace more radical political ideologies. Budding militants
rejected the older generation's aspirations to "pass"
as white, that is, to assimilate with the dominant white culture.
They instead self-identified as "Chicanos," a name intended
to show pride in their Mexicano heritage. This was a loosely
defined movement, but, in general, the Chicanos were politically
progressive relative to established spokespersons for the Mexican
American community. They eschewed both the goals and tactics of
the middle-class. Instead of seeking to win elections or exchanging
votes for patronage, for example, Chicanos celebrated direct action,
mass protest, and self-reliance. Despite Chávez's frequent
denials of intentional ethnic factors in his labor organizing, these
activists romanticized the farm workers' marches as demonstrations
of Chicanismo. 99
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Becoming an "Official" Minority
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Many of the established
leaders within the Mexican American community resisted the Chicano
movement's innovations.100
Yet a variety of tools that proved helpful in refashioning ethnic
identity became available to the mainstream leaders during the 1960s.
The 1964 Civil Rights Act (CRA), for example, which authorized federal
officials to withhold funds from states that allowed racial discrimination,
also extended similar protections to "national origin"
minorities.101
101
The statute authorized the U.S. Department of Health, Education,
and Welfare (HEW) to issue goals and guidelines for school desegregation.102
In a 1965 ruling the federal appeals judges for the Fifth Circuit
declared that federal district judges should give "great weight"
to the HEW standards.103
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The value of the Fifth Circuit's endorsement was limited for a time
by the conservatism of HEW's Office of Civil Rights (OCR). As it
investigated allegations of racial discrimination, OCR initially
collected and published statistics only within black and white categories.
But many school districts had turned the "other white"
argument to their own illegitimate purposes. In order to delay the
court-ordered desegregation of all-white schools, and also to obscure
its slow pace, school district officials in Texas and elsewhere
frequently assigned African and Mexican Americans to the same schools,
a practice often made easier under a neighborhood school concept
by the close proximity of urban ghettos to barrios. School administrators
maintained that because Mexican Americans were "white,"
these schools had been desegregated under Brown and its progeny.
Federal judges and HEW examiners had accepted this logic.104
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HEW examiners began to accumulate evidence of discrimination against
Mexican Americans only after Hector Garcia, in his new role as a
member of the U.S. Civil Rights Commission, rebuked OCR for failing
to answer Mexican Americans' complaints. In 1967, HEW began publishing
data on black, white, and "other" groups. The last category
included "any racial or national origin group for which separate
schools have in the past been maintained or which are recognized
as significant 'minority groups' in the community." Other examples
HEW gave included: "Indian American, Oriental, Eskimo, Mexican
American, Puerto Rican, Latin, Cuban, etc." Later, HEW published
separate statistics on "Spanish Surnamed Americans" and
issued a series of "Mexican-American Studies."105
Yet, despite the emergence around the same time of a new militant
attitude, this shift from official "other white" status
to "other minority" confused some Mexican Americans of
both the younger and the older generations. One student at Texas
A&I University, which later emerged as a hotbed of Chicano activism,
wrote a column in the October 1967 issue of the liberal magazine
Texas Observer. He complained about the Washington bureau-cracy's
misguided attempt, or perhaps it was a clever ploy, to make "the
second largest minority group in the country non-White."106
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A Legal Defense Fund for Mexican Americans
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Mexican American
civil rights lawyers had remained comparatively quiet during the
1960s because lawsuits, even against tiny rural school districts
like Driscoll and Odem, were costly. The limited benefits that more
"due process" victories might bring to the Mexican American
community did not justify the expense.107
In October 1967, a few months after winning in the Odem case, DeAnda
described the financial limitations for litigation, during the hearings
in El Paso of the newly established Inter-Agency Committee on Mexican
American Affairs. DeAnda testified that the lack of resources prevented
the large-scale litigation necessary to fight the segregation of
Mexican Americans. He also proposed remedies. First, he noted that
the 1964 CRA provided for the judicial award of plaintiffs' attorneys'
fees in certain employment discrimination cases. A similar compensation
scheme, he argued, would be appropriate in voting, jury, and school
discrimination suits.108
Second, DeAnda challenged the U.S. Department of Justice to fight
the discrimination against Mexican Americans.109
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The year 1967 saw a turning point in litigation strategy, unrelated
to De-Anda's efforts, when San Antonio attorney Pete Tijerina obtained
a $ 2.2 million, multi-year grant from the Ford Foundation. Tijerina
used it to found the Mexican American Legal Defense and Education
Fund (MALDEF), which he consciously modeled on the NAACP's LDF.110
When the U.S. Civil Rights Commission held hearings in San Antonio
in December 1968, Commissioner Garcia invited Tijerina to describe
why he had organized MALDEF. Tijerina said that his experience in
defending Mexican American criminal defendants before all-Anglo
juries--and this a decade after the U.S. Supreme Court condemned
discriminations in jury selection--had convinced him that a legal
defense organization was needed. Tijerina also decried the great
expense of private litigation and called on the U.S. government
to fight discrimination against Mexican Americans. He assured the
commissioners, however, that he sought only to broaden the scope
of federal efforts, not to compete with black civil rights efforts.111
As contrasted with recently increased federal support of African
Americans, Tijerina noted, the government had never intervened in
a civil rights lawsuit involving Mexican Americans or filed an amicus
brief to support them.112
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Tijerina did not wait for assistance from Washington.113
Instead, as amicus curiae, MALDEF legal expertise and funds
ultimately supported a suit filed by DeAnda that finally confronted
and overcame the "other white" legacy. The shift required
the lawyers to recognize that most of the Mexican American segregation
in Texas was not the result of illegitimate testing in schools,
but long-term residential patterns. Under the judicially approved
"freedom-of-choice" plans for desegregation, Mexican American
parents could not transfer their children into Anglo-majority schools--since,
according to existing interpretations of laws, all Mexican American
students were already enrolled in "white" schools.114
Before Mexican American civil rights advocates could attack the
segregation created by "neighborhood" schools, under the
constraints of "freedom of choice," they had to overcome
Mexican Americans' equivocal minority status. DeAnda finally led
the retreat from the strategic ground that he had helped conquer
during the 1950s. In a path-breaking suit against the large urban
Corpus Christi Independent School District (CCISD) he formally contended
that the Brown rationale should apply to--and condemn as
a clear denial of equal protection--the widespread segregation of
Mexican Americans.115
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Accepting
the Brown Rationale
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Corpus Christi
steelworker Jose Cisneros's children attended such Mexican American-majority
schools and they complained to him regarding the dilapidated and
dirty conditions of their schools. Cisneros tried to persuade CCISD
administrators to repair and improve facilities. He met repeatedly
with teachers, principals, and school board members over two years,
but saw no changes. Moreover, during his investigations, Cisneros
discovered inequities in the curriculum and resources available
to his children as compared to the courses and programs offered
to students in the Anglo-majority schools. Cisneros informed other
parents and community leaders of his findings. At the urging of
Civil Rights Commissioner Garcia, who still lived in Corpus Christi,
HEW studied conditions at CCISD for a year, beginning in September
1967. They found that eighty-three percent of the Mexican American
and African American children attended schools that were identifiable
as minority-majority schools.116
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The CCISD board refused to institute the HEW's suggested improvements
or to heed the parents' complaints. Cisneros was a member of the
U.S. Steel Workers Union, and he turned to the leadership of the
local 5022 in Corpus Christi. The local convinced the national union
to pay for a lawsuit against the CCISD for maintaining a dual school
system.117
It apparently was the first, and perhaps the only, public school
desegregation lawsuit to be financed by a labor union.118
Cisneros and more than two dozen fellow unionists, African Americans
as well as Mexican Americans, retained DeAnda who, in late 1968
formally initiated the litigation by paying the $15 filing fee.119
Several co-counselors helped DeAnda gather documentary evidence,
depose witnesses, and develop his new strategy.120
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Although he hedged his bets by referring occasionally to the "other
white" strategy, DeAnda focused his CCISD complaint on the
novel contention that the Brown rationale should apply to,
and condemn, segregation of Mexican Americans.121
He marshaled evidence from history, sociology, and demography to
demonstrate that despite being "white," Mexican American
Texans suffered widespread discrimination at the hands of Anglo
Texans. The court hearings commenced in mid-May 1970. A significant
portion of the plaintiffs' evidence came from the CCISD's records.
DeAn-da described the percentages of each of the three major ethnic
groups (Anglo American, Mexican American, and African American)
that made up the district's student population and revealed the
number, ethnic heritage, and assignment of each teacher in each
school. DeAnda illustrated the location of the past and present
attendance boundaries, the location, date of construction, and cost
of newer schools and of renovating older schools. Finally, he described
the school children that the CCISD had bused "in the past and
in the present, and who they were, and who they are."122
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Throughout, DeAnda sought to draw a picture of the CCISD as a "dual"
school system that segregated its Anglos on a few campuses and placed
non-Anglos, blacks, and Mexican Americans on the others. He offered
the following breakdown for the 1969-1970 school year: 43 percent
of the elementary students enrolled in CCISD schools were Anglo,
51 percent were Mexican American; in the junior high schools, 48
percent of the students were Anglo, 47 percent were Mexican American;
and, in the senior high schools, 56 percent of the students were
Anglo, 39 percent were Mexican American. Furthermore, fifteen percent
of the total high school enrollment of 9,800 students, 1,300 Mexican
Americans and 200 African Americans, attended schools with greater
than 90 percent non-Anglo enrollment. And another 16 percent, 1,600
Mexican Americans but fewer than thirty blacks, attended schools
with a 70 to 80 percent non-Anglo student body. Thirty-two percent
of the Anglo students attended high schools with a 20 to 30 percent
non-Anglo population (with fewer than 1,000 Mexican Americans enrolled
on those campuses). Twenty percent of the Anglo high school population
attended schools with a less than 10 percent non-Anglo enrollment.123
DeAnda argued that if the CCISD were integrated, then the percentage
of each ethnic group in each school at each grade level would approximate
each group's percentage of the total student population. Instead,
the enrollment figures showed a substantial ethnic imbalance.124
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DeAnda made a simple but compelling case with these numbers. In
the CCISD, Mexican Americans were lumped with African Americans
minority much more often than they were paired with the Anglo majority.
But De-Anda had to prove that this statistical "imbalance"
reflected the Mexican Americans' minority status within an Anglo-dominated,
segregated system. To that end, he called Thomas P. Carter, a professor
of education and sociology at the University of Texas at El Paso,
to testify. Carter began by stating that blatant discrimination
against the Mexican Americans, such as the formerly common signs
that proclaimed "Mexicans and Dogs Not Allowed . . . ,"
were "rapidly disappearing" from Texas, but "[w]e
are moving into a period of very subtle kinds of discrimination."125
Seals asked Carter whether, in the context of the issues raised
in the present lawsuit, Mexican Americans should be considered "an
identifiable group." Carter answered that he "[found]
that a very peculiar question," because the federal census
bureau, and the state of Texas, regarded them as a distinct minority.
Moreover, Carter declared:
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[E]veryone considers [them] an ethic minority
or a cultural minority. In social science, a minority is a group
of people who may be a physical majority, but . . . [also] a
group of people who are not full participants in the dominant
society. In other words, there is discrimination. They don't
fill their proportional number of doctors, lawyer, merchant,
and chief kind of slot in the society. . . . [P]articularly
in Texas, it has been established that many laws were discriminatory
against Mexican-Americans. So both from a legal point of view,
a Government point of view, and a social-science point of view,
they are a minority.126
126
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"So," Carter concluded, "no
matter how you cut it, [they] are going to come out as a minority
. . . from social science and from the legal . . . from the cultural
. . . and the racial point of view."127
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DeAnda needed to connect the enrollment imbalances at CCISD schools
to the widespread discrimination against Mexican Americans. He introduced
into evidence a map of the locations of various Corpus Christi residential
subdivisions that originally featured deed restrictions limiting
the right of lot ownership to members of the "white" race.
The restricted neighborhoods were clustered along the southern and
northern rims of the city. DeAnda demonstrated statistically that
very few Mexican Americans lived in the white enclaves. The location
of the deed-restricted areas around the edges of downtown left an
unrestricted zone in the center where very few Anglos lived, an
area that DeAnda referred to as the "corridor."128
128
In the sharply defined Corpus Christi residential segregation, neighborhood
schooling plans would impede integration. DeAnda suggested that
the perpetual segregation of Anglo American, African American, and
Mexican American students was such an obvious effect of the neighborhood
schools concept, that it might have been instituted expressly to
defeat efforts to integrate the schools. |
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This was the crux of DeAnda's case. When the CCISD board drew attendance
zones to match well-known segregated residential patterns, its members
acted in their official capacity to perpetuate discrimination against
the minority groups. Therefore, DeAnda submitted, they had transmuted
de facto segregation into de jure segregation. Since
the Supreme Court had condemned de jure discrimination, Judge
Seals had the authority and the duty to apply the equal protection
rationale of the Brown decision to Mexican Americans.129
Over the course of five days, DeAnda went to great lengths to prove
that Mexican Americans were a de jure minority who deserved,
but were denied, equal protection of the laws. But, at the last
moment, he resorted to the lawyer's ancient practice of arguing
in the alternative. DeAnda reminded the judge of the Odem and Driscoll
cases, that is, his "other white" due process victories.
Seals took judicial notice of them, and so DeAnda rested his case.130
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Confronted with an argument that had converged with African American
arguments, the CCISD's legal team fell back on strategies that many
southern districts had used to foil black lawyers. The district's
lead attorney, Richard Hall, did not dispute the statistics DeAnda
had offered. He could not argue against the evidence of the unbalanced
CCISD enrollments or debate the effects of the "corridor"
on the residential patterns in Corpus Christi. Instead, Hall attempted
to convince the judge that there were different interpretations,
implications, and conclusions to be drawn from the facts and that
the benefits of neighborhood schooling outweighed the benefits of
integration alleged by Carter. Hall called Lawrence D. Haskew, a
professor of education and administration at U. T. Austin, to testify.
Haskew stated that neighborhood schools could eliminate ethnic and
racial barriers even when residential segregation caused children
to attend segregated schools. The quality of education, not the
place where it was offered, was the important consideration. If
the education in segregated neighbor-hood schools gave the students
social mobility, motivated students would be able to escape from
their disadvantaged environment. Little benefit resulted from transporting
students from one area of the city to another, simply to place them
in an integrated environment for a mere eight hours each day. Rather
than busing students, Haskew declared "education conducted
for people in ghettos is the best route."131
131
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The Decision against the Corpus Christi School Board
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Seals quickly prepared
and delivered his decision. He foreshadowed its content by announcing
that he had concluded that Cisneros and his fellow steel workers
had properly filed their case as a class action.132
Although Congress recently had relaxed requirements for filing class
actions, by amending the Federal Rules of Civil Procedure in 1966,
this was a significant victory for the Mexican American and black
plaintiffs.133
Even under liberalized procedural rules, the Supreme Court regarded
some labels to be inadequate for class actions. In 1969, for example,
in a case from New Mexico, the Court had rejected as overbroad a
proposed plaintiffs' class consisting of "Indo-Hispanos, also
called Mexican-American and Spanish-American."134
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Seals then proceeded to examine what he called the "ultimate
issues" of the case. He had reduced them to five questions.
First, the judge asked, could Brown and its progeny cases
be applied to Mexican Americans, or, was Brown to be limited
to African Americans? Second, if Brown could be applied to
Mexican Americans in principle, did Brown apply to the specific
facts in the present lawsuit against the CCISD's alleged dual school
system? Third, with regard to the African American students, was
the CCISD a dual or unitary school district? Fourth, if the CCISD
did maintain a dual school system, as defined by the Fifth Circuit
cases, was it a de jure or a de facto segregated system?
Finally, Seals asked, if the CCISD was a dual system, how should
he, sitting as a judge in equity, remedy the situation? That is,
"under what plans and programs" could he "disestablish
a dual school system and establish and maintain a unitary school
system?"135
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On the question of whether Brown could be applied to Mexican
Americans, Seals observed that Brown condemned segregation,
"even though the physical facilities and other tangible factors
may be equal," because it deprived all children of the guarantees
of the Fourteenth Amendment. The Brown cases had been specifically
concerned with the segregation of blacks and whites, but "it
is clear . . . that these cases are not limited to race and color
alone."136
Judge Seals rejected outright as "patently unsound" any
interpretation of the Brown decision, or of the Fourteenth
Amendment's equal protection clause, that claimed that "[a]ny
other group which is similarly or perhaps equally, disadvantaged
politically and economically, and which has been substantially segregated
in public schools," should receive less effective constitutional
protection than African Americans.137
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Judge Seals therefore declared that for the purposes of desegregating
the public schools in Corpus Christi, Mexican Americans formed an
identifiable ethnic minority that deserved but had been denied equal
protection of the laws.138
He accepted that the evidence indicated that, in the CCISD, "no
less protection should be fashioned for the district's Mexican-Americans
than for its Negroes," because Mexican Americans "[had]
experienced deprivations and discriminations similar to those suffered"
by the blacks in the district.139
The "proof shows," he declared, that Mexican American
students in the CCISD "have been segregated and discriminated
against in the schools in the manner that Brown prohibits,"
and that because of that segregation and discrimination, they were
"certainly entitled to all the protection announced in Brown."140
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Although the judge had fully accepted
the plaintiffs' claims that the Mexican Americans were a minority
worthy of Fourteenth Amendment protection, he realized that this
was a novel contention. Seals therefore took great pains to argue
against the conventional wisdom that they were "white."
Nonetheless, he demonstrated that he was also still grappling with
the notion. "It is clear to this court," Seals announced
in a rambling judicial aside, that:
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Mexican-Americans, or Americans with Spanish
surnames, or whatever they are called, or whatever they would
like to be called, Latin-Americans, or several other new names
of identification--and parenthetically the court will take notice
that this naming . . . phenomena is similar to that experienced
in the Negro groups: black, Negro, colored, and now black again,
with an occasional insulting epithet that is used less and less
by white people in the South, fortunately. Occasionally you
hear the word "Mexican" still spoken in a derogatory
way in the Southwest--it is clear to this court that these people
for whom we have used the word Mexican-Americans to describe
their class, group, or segment of our population, are an identifiable
ethnic minority in the United States, and especially so in the
Southwest, in Texas and in Corpus Christi.141
141
141
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In addition, he said that he had taken judicial
notice of "congressional enactments, governmental studies and
commissions," and court opinions that seemed either explicitly
or implicitly to accept that Mexican Americans endured discrimination.142
142
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Seals found that "the objective manifestations" of ethnic
discrimination were "gradually disappearing from our society."
Nevertheless, he declared, the "historical pattern of discrimination
has contributed to the present substantial segregation of Mexican-Americans
in our schools." The result was a segregated dual school system.
Then the judge announced that he had concluded that the African
American students in the CCISD were "also segregated to a degree
prohibited by law which causes this to be a dual rather than a unitary
school system." Moreover, "based primarily upon the undisputed
statistical evidence," Seals ruled that the segregated conditions
also were manifested in the CCISD faculty assignments.143
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On the question of whether CCISD
segregation was de facto or de jure, Seals decided
that the evidence was mixed. He noted that "some of the segregation
was of a de facto nature," the result of social and
economic factors in Corpus Christi that caused the city's blacks
and Mexican Americans to continue to live in the "corridor."
But the judge also declared that the segregated dual district in
Corpus Christi had "its real roots in the minds of men; that
is, the failure of the school system to anticipate and correct the
imbalancing that was developing. . . ." And it was obvious,
he said, that "placing
Negroes and Mexican-Americans in the same school does not achieve
a unitary system as contemplated by the law." The unitary district
could only be achieved "by substantial integration of the Negroes
and Mexican-Americans with the remaining student population of the
district."144
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Seals believed, in sum, that through a host of administrative decisions,
the CCISD board had created and perpetuated a dual system. Among
the board's faulty decisions were "drawing boundaries, locating
new schools, building new schools[,] and renovating old schools"
in the predominantly black and Mexican Americans parts of town.
The CCISD board also provided "elastic and flexible subjective"
transfer rules that allowed some Anglo children to avoid schools
in the "ghetto, or 'corridor,'" but had not allowed the
Mexican American or black students to transfer into the Anglo schools.
He declared that "regardless of all explanations and regardless
of expressions of good intentions," these were official decisions
that were "calculated to, and did, maintain and promote a dual
school system."145
Therefore, he ruled that "as a matter of fact and law,"
the CCISD was "a de jure segregated school system .
. . wholly so with respect to the district's Mexican Americans and
predominantly so with respect to the district's Negroes." Moreover,
Seals ruled,
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[T]he de jure nature of the existing
patterns of segregation within [CCISD] has as its base state
action of a non-statutory variety, that is, the school board's
active pursuit of policies that not only do nothing to counteract
the effects of the existing patterns of residential segregation
in view of viable alternatives of significant integrative value,
but, in fact, increase and exacerbate the district's racial
and ethnic imbalance. There has been a history of official school
board acts which have had such a segregative effect.146
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In light of this history of "official school board acts,"
Seals ruled in favor of the plaintiffs and announced that he would
grant them injunctive relief against the CCISD's dual school system.147
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Yet Judge Seals's rulings on the question of Mexican Americans'
status within a multi-ethnic setting did not herald the end of the
school desegregation controversy. The next battle in Texas came
in Houston, where the federal district judge who had for fifteen
years overseen the desegregation cases strongly resisted an innovation
that would upset his carefully balanced--although basically failed--desegregation
plans. The Fifth Circuit delayed hearing an appeal but ultimately
upheld the substance of Seals's novel declarations regarding the
minority status of Mexican Americans in Texas. In 1973, the Supreme
Court chose not to review Cisneros. Instead, the justices
took up equivalent questions in a case originally filed in Denver,
Colorado. The Court declared in the Denver case that, despite the
variations of local customs and statutes, African Americans and
Mexican Americans could in some cases suffer "identical discrimination."
They ought therefore to have access to the same remedies.148
148
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This victory did not mean that either group could expect a quick
end to discrimination; instead, the judicial rulings meant only
that Mexican Americans would formally join African Americans in
their frustrating wait for a resolution of the issue. More lawsuits,
marches, and compromises followed before federal trial and appellate
judges could devise a workable "tri-ethnic" remedy that
promised to integrate the white, black, and brown student bodies.
The search for remedies in Texas took place in and out of court
and would consume another decade.149
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The Legacy of Brown and the Pragmatism
of the Lawyers
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James Patterson
reminds readers of his recent reexamination of Brown v. Board
of Education that, from the moment that Chief Justice Warren
read the unanimous ruling, many contested its legitimacy. But early
criticism contributed less to the case's "troubled legacy,"
as Patterson describes it, than the fact that, fifty years after
Brown, scholars continued to debate not only the legitimacy,
but the social, political, educational, and legal meaning of this
controversial "milestone."150
Legal scholar Derrick Bell was more convinced of the decision's
basic meaning. In his estimation Brown "triggered a
revolution in civil rights law," because it increased African
American plaintiffs' "leverage" in the nation's courtrooms.
The decision ended the constitutional support of state-supported
segregation--which existed across the nation but was most notorious
in the southern Jim Crow regime--and raised blacks' expectations
that federal judges would at long last begin to enforce their rights
under the Fourteenth Amendment.151
Real progress toward formal equality for blacks, of course, required
the enactment of civil rights legislation and, of course, local
litigation to enforce the new laws through judicial decisions. Significant
political and social change came slowly and only with boycotts,
marches, and martyrdom. Nevertheless, African Americans justifiably
celebrate the Brown decision as a turning point in their
history.152
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The legacy of Brown is more
troubled for Mexican Americans. In the years immediately following
the decision, it was reasonable for Mexican American lawyers to
regard the decision as applicable only to the sort of discrimination
suffered by African Americans. Because popular racism as well as
some official biracial classifications survived Brown, it
was also reasonable for them to rely on tried and true approaches.
The legal profession is naturally conservative--not in terms of
political ideology, but in terms of respecting and recognizing settled
and preferably favorable precedent. The changes in African Americans'
political and social positions that had developed during the decade
after Brown did not mean that similarly conservative federal
judges would--if asked to do so--agree to over-look a well-established
jurisprudence, recognize Mexican Americans as a de jure minority,
and grant equitable relief under Brown. |
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Why did Mexican Americans lawyers
finally seek to appropriate the "revolutionary" decision
Brown and so stake a claim to the judicially administered
equitable remedies available through the equal protection clause?
Critics of the legal profession as well as critics of remedial civil
rights programs such as affirmative action would likely argue that
the Mexican American lawyers were opportunistic and cynical--that
they sought certain legislatively derived benefits and finally hit
upon the proper formula for obtaining them. Why else, critics (themselves
cynics) might ask, would legal representatives of an ethnic group
proud of its historically mainstream identity suddenly seek to obtain
judicial recognition that their clients were in fact members of
a minority that as a class had been subjected to discrimination
by a dominant majority? Part of the answer, I believe, is that lawyers
like DeAnda were pragmatic realists, not cynical opportunists. They
adopted an "other white" identity because judicial precedents
prior to Brown dictated that approach as the best for achieving
their goals. They did not attack the constitutional foundations
of Jim Crow because such an approach would not serve their clients'
immediate needs and, in all likelihood, would fail completely. African
American lawyers, by contrast, planned and executed a constitutional
revolution because they needed one. By the 1960s, frustrated by
a general lack of social progress, Mexican American lawyers needed
a revolution as well, and they at long last abandoned a dead-end
strategy. |
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Such were the external legal considerations that contributed to
a paradigm shift on "other whiteness." But another important
impetus for the novel premises of the Cisneros suit emerged
from social and political pressures that were internal to Mexican
American politics (albeit also characteristic of the 1960s). A younger
generation of activists began to stake out a new identity as a mystical
"bronze race"--the Chicano movement's La Raza--that
explicitly repudiated the older generations' painstakingly constructed
whiteness. The need to combine the internal and external forces
was revealed when Chicano students protested the Anglos' cultural
hegemony by walking out of classrooms in the late 1960s. Two-thirds
of Mexican American students attended Mexican American majority
schools. Forty percent were enrolled at schools where the student
body was at least 80 percent Mexican American. Twenty percent attended
schools that were at least 95 percent Mexican American.153
Such imbalance was maintained by the reliance by school boards on
neighborhood schooling plans for desegregation. No litigation that
attacked testing or tracking would have changed this ethnic concentration.
The use of the existing biracial (black-white) formulas, moreover--under
which administrators transferred African American students into
predominantly Mexican American schools and called the schools "desegregated"--promised
to isolate both populations even more instead of ending a separation
that was, according to Brown, inherently unequal. In this
way, perhaps, school administrators themselves revealed to Mexican
American lawyers the bankruptcy of "other white" arguments
and the utility of Brown. |
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The contemporaneous creation of MALDEF had less to do with the shift
in thinking than might be expected. The upheavals brought by the
black civil rights struggle, the farm workers' movement, and antiwar
protests inspired many disaffected Mexican-descended youths to adopt
similar goals and direct action tactics--such as walkouts and other
disruptive demonstrations--in order to combat the inequities they
encountered. As a result, however, activists frequently found themselves
sanctioned by school administrators or even law enforcement agencies.154
Instead of suing schools to change the rules of desegregation, therefore,
MALDEF undertook a number of cases that established the new organization
as something of an un-official civil liberties bureau for militant
Chicano students. Significantly, in these cases, MALDEF's attorneys
did not argue--and in civil liberties cases had no reason to claim--that
Mexican Americans were and ought to be considered a group distinct
from Anglos. Nevertheless, MALDEF's early victories in this field
helped to reestablish litigation as a tool for vindicating Mexican
Americans' civil rights.155
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The recognition that formerly favorable precedents had become counterproductive,
combined with the challenges to the conventional wisdom posed by
the Chicano movement, led some lawyers to rethink the basis of Mexican
Americans' civil rights litigation. The plaintiffs and their lawyers
in Corpus Christi opened an important new front in the civil rights
struggle by abandoning the dubious benefits of whiteness--thus adopting
the heart of the Chicano argument, if not the whole body--and choosing
to make fresh claims under Brown. The favorable decision
in the Cisneros litigation established a new precedent that
allowed Mexican Americans finally to commence in earnest what Rubén
Donato has called the "other struggle for equal schools."156
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The Mexican Americans' newly reinvigorated legal efforts would continue
to evolve in response to changing social, political, and legal conditions.
The unfortunate truth, of course, is that Mexican Americans had
not missed much actual school desegregation during the fifteen years
that they sat on the sidelines--African Americans had in fact made
little progress during that first decade and a half after Brown
was decided. But Mexican Americans nevertheless saw evidence
that some slow progress was being made. In 1979, for example, James
DeAnda was appointed to a new judicial seat in the Southern District
of Texas and so became the nation's second Mexican American federal
district judge. He was sworn in by the first, Reynaldo Garza, who
since 1961 had risen by dint of seniority to become the chief judge
in the district.157
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Steven H. Wilson received his doctorate in history
at Rice University. He is a consultant in Houston specializing
in litigation research and analysis. Wilson wishes to express
his appreciation to the anonymous readers of Law and History
Review, to his mentor Harold M. Hyman of Rice, and to his
colleague Carlos K. Blanton of Texas A&M University. Comments
and criticism from these scholars greatly improved this article.
Notes
1.
The Brown litigation was an archetype of the long-term
remedial approach for bringing about fundamental reform that Abram
Chayes, in an influential article, called "public law litigation."
Abram Chayes, "The Role of the Judge in Public Law Litigation,"
Harvard Law Review 89 (1976): 1282-86.
2.
Advocates of women's rights initiated their own campaign of "public
law litigation" in the 1970s. See Karen O'Connor, Women's
Organizations' Use of the Courts (Lexington: Lexington Books,
1980); and Susan Gluck Mezey, In Pursuit of Equality: Women,
Public Policy, and the Federal Courts (New York: St. Martin's
Press, 1992). A similar pattern led to suits by other disenfranchised
groups, such as criminal defendants, prison inmates, and mental
patients. See Phillip J. Cooper, Hard Judicial Choices: Federal
District Court Judges and State and Local Officials (New York:
Oxford University Press, 1988).
3.
In this article, I address the experiences of Mexican Americans,
but a longstanding debate surrounds this and many other terms
referring to ethnic, cultural, or racial groups. I bow to the
decision made by another scholar, Ian F. Haney López, and
intend the term "Mexican Americans" to mean all permanent
immigrants to the United States from Mexico and their descendants,
as well as persons descended from the Mexican inhabitants of the
region acquired by the United States in the late 1840s under the
Treaty of Guadalupe Hidalgo. See Ian F. Haney López, White
by Law: The Legal Construction of Race (New York: New York
University Press, 1996), xiv.
4.
See Jorge C. Rangel and Carlos M. Alcala, "Project Report:
De Jure Segregation of Chicanos in Texas Schools," Harvard
Civil Rights-Civil Liberties Law Review 7 (1972): 331-33,
342-43, esp. n. 216, and 348-49; Gerald M. Birnberg, "Notes:
Brown v. Board of Education Applies to Mexican-American
Students and Any Other Readily Identifiable Ethnic-Minority Group
or Class," Texas Law Review 49 (1971): 339; and Guadalupe
Salinas, "Comment: Mexican-Americans and the Desegregation
of Schools in the Southwest," Houston Law Review 8
(1971): 939.
5.
Mark V. Tushnet, The NAACP's Legal Strategy against Segregated
Education, 1925-1950 (Chapel Hill: University of North Carolina
Press, 1987), xi.
6.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954),
495. The decision is known as Brown I; it joined various
"School Segregation Cases" from Kansas, South Carolina,
Virginia, and Delaware. See also Brown v. Board of Education
of Topeka, 349 U.S. 294 (1955) [Brown II] and Bolling
v. Sharpe, 347 U.S. 497 (1954), the latter declaring segregated
public schools in the District of Columbia to be unconstitutional.
See Richard Kluger, Simple Justice: The History of Brown v.
Board of Education and Black America's Struggle for Equality (New
York: Vintage Books, 1975); and Jack Greenberg, Crusaders in
the Courts: How a Dedicated Band of Lawyers Fought for the Civil
Rights Revolution (New York: Basic Books, 1994).
7.
For the role played by federal judges in the post- Brown civil
rights era, see J. W. Peltason, 58 Lonely Men: Southern Federal
Judges and School Desegregation, new ed. (1961; Urbana: Illini
Books of the University of Illinois Press, 1971).
8.
James T. Patterson, Brown v. Board of Education: A Civil Rights
Milestone and Its Troubled Legacy (New York: Oxford University
Press, 2001), xxvii-xxix. The Brown decision was limited
to schools, and therefore, the Court did not actually condemn
segregation in public accommodations until after the Montgomery,
Alabama, bus boycott. Gayle v. Brow-der, 352 U.S. 903 (1956).
9.
This provides that "All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws." U.S. Constitution, Fourteenth
Amendment, Section I. Mexican Americans used process-based "other
white" arguments in a long line of state and federal suits.
George A. Martinez, "Legal Indeterminacy, Judicial Discretion
and the Mexican-American Litigation Experience: 1930-1980,"
University of California at Davis Law Review 27 (1994):
555.
10.
Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex.,
1970), 607.
11.
See "DeAnda," in Judges of the United States, 2d
ed. (Washington, D.C.: Bicentennial Committee of the Judicial
Conference of the United States, 1983) [hereafter cited as: Judges
of the United States]. For the atmosphere of nativism in the
first quarter of the twentieth century, see Mae M. Ngai, "The
Architecture of Race in American Immigration Law: A Reexamination
of the Immigration Act of 1924," Journal of American History
86 (1999): 67.
12.
Sweatt v. Painter, 339 U.S. 629 (1950). Heman Sweatt, the
African American mail carrier who filed the suit, was also from
Houston. The Court declared that the separate law school established
for Negroes in Houston could never be the equal of the University
of Texas law school, because the latter enjoyed "intangible"
advantages, such as the reputation of its faculty and the interaction
of its students, which rendered it superior. A related graduate
desegregation case is McLaurin v. Board of Regents, 339
U.S. 637 (1950).
13.
Oral History Interview with James DeAnda, by Steven H. Wilson
(20 May 1998). For similar recollections in a more convenient
format (although in a profile that contains some minor inaccuracies
regarding some of the cases discussed), see Student News Feature,
"Judge James DeAnda: Graduate Blazed Trails in Texas Civil
Rights," Townes Hall Notes (Fall 2000): 74-77. For
one Houston firm's record of hiring--or of not hiring--lawyers
of Hispanic descent, see Harold M. Hyman, Craftsmanship and
Character: A History of the Vinson & Elkins Law Firm of Houston,
1917-1997 (Athens: University of Georgia Press, 1998), 412.
14.
163 U.S. 537 (1896).
15.
See Act of 20 May 1893. 23rd Legislature, General Laws of Texas,
chap. 122, "Public Free Schools," sec. 15, the relevant
part of which states: "The terms 'colored race' and 'colored
children,' as used in the preceding, and elsewhere in this act,
include all persons of mixed blood descended from negro ancestry."
See H. P. N. Gammel, compiler, The Laws of Texas, 1822-1897
(Austin: H. P. N. Gammel Book Company, 1898), 10:616. The
Texas Legislature reenacted the statute, including its definition
of "colored children," by the Act of April 1905, 29th
Legislature, p. 263, secs. 93-96, 128. This was subsequently codified
in the General Provisions, chap. 19, arts. 2897-99. Complete
Texas Statutes (Kansas City: Vernon Law Book Company, 1920),
491. The final codification of the "Jim Crow" school
laws in Texas came in the Revised Statutes (R.S.), chap. 19, art.
2900 [combining former arts. 2897-98]. See C. H. Jenkins, The
Revised Civil Statutes of Texas, 1925, Annotated (Austin:
H. P. N. Gammel Book Co., 1925), 1:1036.
16.
Juan Gómez-Quiñones, Roots of Chicano Politics,
1600-1940 (Albuquerque: University of New Mexico Press, 1994),
360-61. Also see David G. Gutiérrez, Walls and Mirrors:
Mexican Americans, Mexican Immigrants, and the Politics of Ethnicity
(Berkeley: University of California Press, 1995), 53. Many
persons of Mexican descent may also have an African descent; clearly,
however, the "one drop rule" as described in the Texas
statutes (and those of most other southern states) did not apply
generally to Mexican Americans. F. James Davis, Who Is Black?
One Nation's Definition (University Park: Pennsylvania State
University Press, 1991), 114-15, and generally.
17.
David Montejano, Anglos and Mexicans in the Making of Texas,
1836-1986 (Austin: University of Texas Press, 1987). The basic
facts of this story applied across the nation and especially in
the southwest. In this article, I explore in particular the shifting
racial identity of Mexican Americans in Texas. The state's particular
history and geography combined to make Texas law and society reflective
of regional prejudices from both the South and Southwest. See
Neil Foley, The White Scourge: Mexicans, Blacks, and Poor Whites
in Texas Cotton Culture (Berkeley: University of California
Press, 1997), 1-12. The term "Anglo" may need some clarification.
It literally refers to those of "English" descent and
so is somewhat inadequate to account for descendants of the Bohemians
(Czechs), Germans, or other Europeans who settled in Texas. In
1970, however, the U.S. Civil Rights Commission noted that, as
it was customarily employed in the Southwest, the term "Anglo"
referred "to white persons who are not Mexican Americans
or members of some other Spanish surnamed groups" and that
it carried "no derogatory connotations." United States
Commission on Civil Rights, Mexican Americans and the Administration
of Justice in the Southwest: Summary (Washington, D.C.: U.S.
Government Printing Office, 1970), 2, and note.
18.
In 1849 the California state constitution granted Mexicans the
same citizenship rights enjoyed by Anglo-Americans. See Ngai,
"The Architecture of Race in American Immigration Law,"
88, esp. n. 47.
19.
In re Rodriguez, 81 Fed. 337 (W.D. Texas, 1897).
20.
Ngai, "The Architecture of Race in American Immigration Law,"
92.
21.
Ibid., 88-90.
22.
Ibid., 89.
23.
Ibid., 91.
24.
Ian F. Haney López, "Race, Ethnicity, Erasure: The
Salience of Race to LatCrit Theory," California Law Review
85 (1997): 1148, n. 20, 1170-71, and 1179, n. 115.
25.
Gómez-Quiñones, Roots of Chicano Politics, 366-69;
Gutiérrez, Walls and Mirrors, 51-65, 80-87. The
Americanization movement was fed by World War I-era xenophobia.
"Hyphenated" Americans were thought to have divided,
therefore questionable, loyalty. The movement aimed to educate
immigrants and transform the foreign-born into citizens who were
both English-speaking and "100 percent American." John
F. McClymer, "The Americanization Movement and the Education
of the Foreign-Born Adult, 1914-1925," in American Education
and the European Immigrant, 1840-1940, ed. Bernard H. Weiss
(Urbana: University of Illinois Press, 1982), 105.
26.
See Henry A. J. Ramos, The American G.I. Forum: In Pursuit
of the Dream, 1948-1983 (Houston: Arte Público Press,
1998); and Carl Allsup, The American G.I. Forum: Origins and
Evolution (Austin: Center for Mexican American Studies, 1982).
27.
Guadalupe San Miguel, Jr., "Let All of Them Take Heed":
Mexican Americans and the Campaign for Educational Equality in
Texas, 1910-1981 (Austin: University of Texas Press, 1987),
69-70, 116, 165-71.
28.
Acts of 29th Legislature, chap. 124, sec. 102. Legislators later
amended the law to prohibit the use of textbooks not printed in
the English language. However, the statutes did not prevent teaching
or learning languages other than English. For example,
the English-only laws did not prevent the "teaching of Latin,
Greek, French, German, Spanish, Bohemian, or other language as
a branch of study in the high school grades as outlined in the
state course of study." Acts of 1918, 4th Civil Statutes,
chap. 80, sec. 1. Codified in the General Provisions, chap. 19,
art. 2904(5a). The latter three languages are included because
many Texans or their ancestors originally had emigrated from the
regions of Bohemia (the present-day Czech Republic), Germany,
and, of course, Mexico, during the nineteenth century, and linguistic
enclaves persisted throughout the state. In 1918, patriotic Texas
lawmakers authorized criminal sanctions against school
teachers who taught students in a language other than English.
Convicted violators were subject to fine and dismissal. Texas
Penal Code, arts. 1038(a)-1038(f). See Complete Texas Statutes,
492.
29.
Montejano, Anglos and Mexicans in the Making of Texas, 160,
191-96.
30.
Gómez-Quiñones, Roots of Chicano Politics, 374.
Quote from the case, Inhabitants of Del Rio Independent School
District v. Jesus Salvatierra, 33 S.W. 2d 790 (Tex. Civ. App.,
1930), at 794; dismissed for lack of jurisdiction, and cert.
denied, 284 U.S. 580 (1931) [hereafter Salvatierra].
(Some references cite the case as "Salvatierra v. Independent
School District.")
31.
The superintendent testified that he did not send English-speaking
children "who came in late over to the school where I sent
the Mexican or Spanish speaking children. . . ." Ibid.,
792-93.
32.
Emphasis added. Ibid., 794-95. The plaintiffs sought to bring
this case before the U.S. Supreme Court, but the Court dismissed
the appeal for lack of jurisdiction. 284 U.S. 580 (1931).
33.
Charles L. Glenn with Esther J. de Jong, Educating Immigrant
Children: Schools and Language Minorities in Twelve Nations (New
York: Garland Publishing, 1996), 338.
34.
Martinez, "Legal Indeterminacy," 577-80. The ruling
bedeviled Mexican American civil rights litigants for decades.
Forty years later, federal courts ruled that bilingual education
might reduce the language and even culture problems better than
segregation. United States v. Texas, 342 F.Supp. 24 (E.D.Tex.,
1971). See Frank R. Kemerer, William Wayne Justice: A Judicial
Biography (Austin: University of Texas Press, 1991), chap.
five.
35.
Mendez v. Westminster School District, 64 F.Supp. 544 (S.D.Cal.,
1946).
36.
Kluger, Simple Justice, 399-400. The civil rights litigators
rarely coordinated suits with their counterparts. But organizations
representing Mexican Americans and African Americans in civil
rights litigation occasionally made common cause, either as interveners
in suits or as writers of amicus curiae briefs in support
of one another's positions. However, leaders of the various civil
rights organizations were often jealous of their perceived turf
and reacted poorly to interference from other organizations. Stephen
L. Wasby, Race Relations in an Age of Complexity (Charlottesville:
University Press of Virginia, 1995), 123-24.
37.
Mendez, 64 F.Supp. 549. Regarding these Mexican American
desegregation cases, one commentator noted how "strikingly
similar" this 1946 pronouncement is to statements made by
the Supreme Court eight years later, in Brown. Salinas,
"Mexican-Americans and the Desegregation of Schools in the
Southwest," 940.
38.
Mendez, 64 F.Supp., 549.
39.
Westminster School District v. Mendez, 161 F.2d 774 (9th
Cir., 1947), 781. See also, Roberts v. City of Boston, 59
Mass. (5 Cush.) 198 (1849), in which the Massachusetts courts
ruled that in the absence of legislation, local school boards
nonetheless had discretion to segregate. Mendez, 161 F.2d
779, n. 6.
40.
Mendez, 161 F.2d 784.
41.
State courts ruled against Mexican American efforts to desegregate
public accommodations until forced to abandon the position by
federal courts. As to restrictive covenants, the Supreme Court's
decision in Shelley v. Kraemer, 334 U.S. 1 (1948), prevented
the state courts ruling against Mexican Americans. Martinez, "Legal
Indeterminacy," 573.
42.
Opinion No. V-128, Digest of Opinions of the Attorney General
of Texas (Austin: 1947), 39. See Rangel and Alcala, "Project
Report: De Jure Segregation of Chicanos in Texas Schools,"
335-36, esp. nn. 158-59.
43.
Delgado v. Bastrop ISD, Civ. No. 388 (unreported: W.D.Tex.,
15 June 1948).
44.
Rice ultimately ruled that if a school district provided for linguistic
segregation, any separate facilities must be located on the same
campus as other classrooms. Ibid., 1-2.
45.
L. A. Woods, "Official Communication from the State Superintendent
of Public Instruction," With Texas Public Schools, vol.
1, no. 1 (Austin: Texas Department of Education; September 1948):
1-3.
46.
Ibid., secs. 6-7.
47.
Ibid., sec. 1. No district needed to spend its budget on tests.
Instead, the superintendent supplied addresses of the Austin publisher
of exams and informed local officials that they may "[o]rder
[a] supply of tests [for a] price [of] not more than $1.25 for
the instructions and tests for 25 pupils." In the spirit
of local control, school district administrators retained discretion
to segregate or not to segregate, and the decision was contingent
on their willingness to spend their budget for that purpose. In
addition, the superintendent would allow local officials to set
their own standards for competency, "[s]ince the situation
which we face requires immediate action." He noted, however,
that "[a]fter one year of experimentation and adjustment,
then we may be ready to fix a state-wide standard." Ibid.,
secs. 8-9.
48.
Ibid., 3.
49.
Salinas, "Mexican-Americans and the Desegregation of Schools
in the Southwest," 941. As noted, Delgado v. Bastrop was
unpublished and so lacked much weight outside Texas. But the next
reported federal case involving segregation of Mexican
Americans, in Arizona three years after Delgado, supported
Judge Rice's essential findings. In Gonzalez v. Sheely, 96
F.Supp. 1004 (D.Ariz., 1951), the judge followed Mendez to
find that a district that segregated Mexican American children
into one school attended solely by Mexican Americans violated
the children's Fourteenth Amendment rights. The court determined
that the physical segregation harmed students' ability to learn
English and retarded development of a common culture, which the
judge thought was essential to full participation in American
civic life. Further, the court found that the segregation fostered
antagonism and wrongly suggested to the Hispanic children that
they were inferior to Anglos. Ibid., 1005-7. The court enjoined
discriminatory practices where the legislature had not specifically
authorized segregation of students of Mexican descent. However,
the Gonzales decision, once again following Mendez,
did not forestall the probable result: continued separate
classrooms for the language minority. Ibid., 1009. According to
Martinez, even given this shortcoming, Gonzalez represented
an advance over Salvatierra. Martinez, "Legal Indeterminacy,"
580.
50.
Sanchez v. State, 243 S.W. 2d 700 (1951), 701; Case No.
25,496, Court of Criminal Appeals of Texas (also published at
156 Texas Cr. R. 468); November 21, 1951. See Haney López,
"Race, Ethnicity, Erasure," 1169-70, especially n. 83.
51.
Hernandez v. State, 251 S.W. 2d 531 (1952), 533. Case No.
25,816, Court of Criminal Appeals of Texas; 18 June 1952. The
qualifications for jury service in any Texas county included state
and county citizenship; qualifications to vote in the county;
status as a freeholder within the state, or a householder within
the county; possession of sound mind and good moral character;
and ability to read and write (presumably in English). Also, prospective
jurors could not have been convicted of any felony and could not
be under indictment or other legal accusation for theft or of
any felony during the jury's term of service. See Texas Code
of Criminal Procedure (Kansas City: Vernon Law Book Company,
1948), arts. 333-50.
52.
Norris v. Alabama, 294 U.S. 587 (1935). Also see Powell
v. Alabama, 287 U.S. 45 (1932).
53.
Hernandez v. State, 251 S.W. 2d 531 (1952), 535.
54.
Serapio Sanchez v. State, 147 Tex. Crim. 436 (1944), 443;
Case No. 22,856, Court of Criminal Appeals of Texas (also published
at 181 S.W. 2d 87); May 17, 1944.
55.
Hernandez v. State, 251 S.W. 2d 531 (1952), 532-35.
56.
Ibid., 536.
57.
Hernandez v. Texas, 347 U.S. 475 (1954).
58.
Ibid., 479-81.
59.
Ibid., 475, 477-81.
60.
Furthermore, the Court held that even unintentional discrimination
might constitute a denial of equal protection. Ibid., 475, 477-81.
61.
See Haney López, "Race, Ethnicity, Erasure,"
1143-46, 1158-72, and 1187, n. 135. As noted, the Hernandez
decision preceded Brown by two weeks, and Hernandez
immediately precedes Brown in the published decisions
of the U.S. Reports. Despite both temporal and literal
proximity, scholars overlook the Hernandez case, or any
Mexican American perspective, even in works focused on Texas's
desegregation battles. See Ladino, Desegregating Texas Schools.
However, as mentioned above, in 1946 LDF's Robert Carter filed
an amicus brief in Mendez. Also, Kluger discussed
the equal protection aspects of a later school-funding case with
a Mexican American focus, San Antonio ISD v. Rodriguez, 93
S.Ct. 1278 (1973). See Kluger, Simple Justice, 399-400
(Mendez), 669-770 (Rodriguez).
62.
Herminio Hernandez et al. v. Driscoll Consolidated Independent
School District [hereafter Hernandez v. Driscoll CISD];
Civil Action (Civ.A.) 1384, U.S. District Court for the Southern
District of Texas (S.D.Tex., 1957), Corpus Christi Division. For
the published opinion, see 2 Race Relations Law Reporter 329
(S.D.Tex., 1957) [Race Rel. L. Rptr.]. Files for cases
heard in the federal courts in Texas and the Fifth Circuit are
preserved at the National Archives and Records Administration-Southwest
Regional Archives (NARA-SWA), in Fort Worth, Texas. This case
may be found in Civil Cases, S.D.Tex., Corpus Christi Division,
1938-1969, Record Group (RG) 21, Boxes 232-33, folders for C.A.
1384 [the hearing transcript for Hernandez v. Driscoll CISD
is loose in Box 233]. Subsequent references to the files in
Hernandez v. Driscoll CISD are to this NARA-SWA record
group.
63.
Allred, "Opinion," pp. 3-6. NARA-SWA. RG 21, Box 232,
Folder 1: "1384 Herminio Hernandez et al. v. Driscoll
Consolidated ISD."
64.
Hearing transcript of Hernandez v. Driscoll, vol. 1, pp.
6, 63-64, 93-95. NARA-SWA. RG 21, Box 233.
65.
Hernandez v. Driscoll CISD, 2 Race Rel. L. Rptr. 329
(S.D.Tex., 1957). Judge Allred was a rare specimen in Texas politics
in the 1950s--a truly liberal Democrat. See Patricia A. Tidwell,
"James V. Allred of Texas: A Judicial Biography" (M.A.
Thesis, Rice University, 1991). Also see Charles L. Zelden, Justice
Lies in the District: The U.S. District Court, Southern District
of Texas, 1902-1960 (College Station: Texas A&M University
Press, 1993), 153, 177. Hernandez v. Driscoll CISD was
the first post- Brown Mexican American desegregation case
to be decided by the federal courts, although it was not the first
filed after Brown. The first such case to reach
the federal courts was Romero v. Weakly, 131 F.Supp. 818
(S.D.Cal., 1955), in which Mexican Americans filed suit against
the El Centro School District. Attorneys for the defendant school
district claimed that the state courts had yet to apply and construe
applicable California laws and argued that the federal district
judge should abstain. (Under the Pullman abstention doctrine,
federal courts seek to avoid premature interference with the state
courts' construction of state laws; see Railroad Commission
of Texas v. Pullman, 312 U.S. 496 [1941], 501.) The judge
agreed with the school district and dismissed the suit. The judges
of the U.S. Court of Appeals for the Ninth Circuit reversed that
decision and ordered the district court to hear the case. Romero
v. Weakly, 226 F.2d 399 (9th Cir., 1955), 402. Significantly,
the Ninth Circuit judges observed that the Mexican American plaintiffs
might have sought federal intervention after concluding that federal
judges would be more open to their arguments than judges in the
state courts, because the state judges are elected and federal
judges are appointed for life. Ibid., 401. Martinez believes this
to be a key point, because Mexican Americans had not enjoyed much
success in California state courts. See Martinez, "Legal
Indeterminacy," 581-82. By the time Romero reached
rehearing, Driscoll CISD was well underway in Texas.
66.
DeAnda et al., "Complaint to Enjoin Violation of Federal
Civil Rights and For Damages," pp. 1-2. NARA-SWA. RG 21,
Box 232, Folder 3: "1384 Hernandez v. Driscoll."
Specifically, the complaint referred to 42 U.S.C. secs. 1981-83
(formerly, 8 U.S.C. sec. 43). These statutes were codifications
of the Civil Rights Acts of 1870 and 1871, which provided as follows:
"[a]ll persons within the jurisdiction of the United States
shall have the same rights in every state . . . to the full and
equal benefit of all laws . . . as is enjoyed by white citizens
. . ." [Act of 1870, sec. 16, codified 42 U.S.C. sec. 1981];
and "[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured . . ." [Act
of 1871, sec. 1, codified 42 U.S.C. sec. 1983]. DeAnda also represented
similarly situated plaintiffs in Trinidad Villareal et al.
v. Mathis Independent School District of San Patricio City et
al., which he filed at the same time as Hernandez v. Driscoll
CISD, and on the same grounds. Judge Allred granted the defendants'
motion to dismiss the case in May 1957, after DeAnda's expert
witness begged off. Villareal v. Mathis ISD; Civ.
A. 1385 (S.D.Tex., Corpus Christi Division, 2 May 1957). NARA-SWA.
RG 21, Civil cases of the S.D.Tex., Corpus Christi Division, 1938-69,
RG 21, Box 233, Folder "1385."
67.
DeAnda et al., "Complaint to Enjoin Violation of Federal
Civil Rights and for Damages," p. 5. To make up for this
deprivation, the plaintiffs also sought to obtain damages from
the board. Requested damages for each individual plaintiff were
$4000 in actual damages for the estimated wages lost after being
unnecessarily held back in school for two years and another $4000
in punitive damages. Ibid., pp. 7-8.
68.
In December, Allan Davis of the Corpus Christi firm Boone, Davis,
Cox and Hale, answered for Driscoll CISD. "Answer,"
NARA-SWA. RG 21, Box 232, Folder 2: "1384 Hernandez v.
Driscoll."
69.
DeAnda et al., "Plaintiffs' Pre-Trial Memorandum," p.
1; NARA-SWA. RG 21, Box 232, Folder 2: "1384 Hernandez
v. Driscoll" [emphasis added; the reference is to Mendez].
70.
Ibid., pp. 1-2.
71.
Hearing transcript of Hernandez v. Driscoll, vol. 1, pp.
11-12; NARA-SWA. RG 21, Box 233 [no folder]. Davis retorted that
language segregation was necessary for the education of both classes
of students. Ibid., vol. 1, p. 4.
72.
Ibid., vol. 1, pp. 50-65.
73.
Hearing transcript of Hernandez v. Driscoll CISD, vol.
3, p. 544; NARA-SWA. RG 21, Box 233 [no folder].
74.
Ibid., pp. 545-46.
75.
Ibid.
76.
Ibid., p. 548.
77.
Docket log, NARA-SWA. RG 21, Box 232, Folder 1: "1384 Herminio
Hernandez et al. v. Driscoll Consolidated ISD."
78.
DeAnda et al., "Plaintiffs' Brief," p. 8; NARA-SWA.
RG 21, Box 233 [no folder].
79.
Davis et al., "Brief for Defendants," pp. 12-13; NARA-SWA.
RG 21, Box 233 [no folder]. Davis attempted to reargue rather
than to summarize his case. He concluded that the "only question
which the courts should decide" is whether the district acted
in good faith. Ibid., p. 6. Davis contended that the plaintiffs
did not represent a proper "class" with standing under
Federal Rules of Civil Procedure. Fed.R.Civ.P. Rule 23(a). Allred's
reply was a curt: "[t]his contention comes a bit late and
is overruled." Allred, "Opinion," NARA-SWA. RG
21, Box 232, Folder 1: "1384 Herminio Hernandez et al.
v. Driscoll Consolidated ISD."
80.
DeAnda et al., "Plaintiffs' Brief," p. 8; NARA-SWA.
RG 21, Box 233 [no folder].
81.
DeAnda et al., "Plaintiffs' Reply to Defendants' Brief,"
p. 6; NARA-SWA. RG 21, Box 233 [no folder].
82.
Allred, "Opinion," p. 12, esp. n. 13; NARA-SWA. RG 21,
Box 232, Folder 1: "1384 Herminio Hernandez et al. v.
Driscoll Consolidated ISD." See also 2 Race Rel. L.
Rptr. 329, at 332-33.
83.
Allred, "Judgment," p. 2; NARA-SWA. RG 21, Box 232,
Folder 1: "1384 Herminio Hernandez et al. v. Driscoll
Consolidated ISD."
84.
Martinez, "Legal Indeterminacy," 583-84. Martinez analyzes
(mostly published) decisions concerning Mexican American litigation
of civil rights issues between 1930 and 1980. Among the stated
goals of his article is an attempt "to demonstrate that courts'
decisions either for or against Mexican-Americans were often not
inevitable or compelled" and to expose the extent to which
courts have exercised discretion and "helped or failed to
help establish the rights of Mexican-Americans." Ibid., 559.
85.
Salinas, "Mexican-Americans and the Desegregation of Schools
in the Southwest," 941; Guadalupe San Miguel, Jr., "Mexican
American Organizations and the Changing Politics of School Desegregation
in Texas, 1945-1980," Social Science Quarterly 63
(1982): 708-9.
86.
Allsup, The American G.I. Forum, 94-97; and Ramos, The
American G.I. Forum, 22, 58-63.
87.
For the practice of "tracking," see Rangel and Alcala,
"Project Report: De Jure Segregation of Chicanos in Texas
Schools," 331-33, esp. n. 139.
88.
Chapa v. Odem Independent School District (S.D.Tex., 1967)
[Corpus Christi Division, Civ. No. 66-C-72]. Judge Seals requested
additional evidence to support the validity of the ability testing
in general. See Rangel and Alcala, "Project Report: De Jure
Segregation of Chicanos in Texas Schools," 347-48, including
nn. 241-45.
89.
For these events, see Ignacio M. Garcia, Viva Kennedy: Mexican
Americans in Search of Camelot (College Station: Texas A&M
University Press, 2000); and J. Gilberto Quezada, Border Boss:
Manuel B. Bravo and Zapata County (College Station: Texas
A&M University Press, 1999).
90.
DeAnda admitted much later that--at thirty-five years old--he
was probably too young to be a serious nominee for a federal judgeship.
Oral History Interview with DeAnda (20 May 1998). Politicians
coveted such judgeships because they could both pay off political
debts and advance agendas. In 1959 both U.S. senators from Texas
were Democrats--including the ambitious Senate majority leader
Lyndon Johnson. Ralph W. Yarborough, who led the liberals in Texas,
had been in the U.S. Senate for only one year but became Texas's
senior senator when Johnson became vice-president in 1961. Republican
John Tower replaced Johnson after winning a special election.
Zelden, Justice Lies in the District, 210. Chandler Davidson,
Race and Class in Texas Politics (Princeton: Princeton
University Press, 1990), 29-32, 166.
91.
Garza was born on 7 July 1915, graduated from Brownsville Junior
College in 1935, and two years later won the B.A. degree from
the University of Texas at Austin. In 1939 he received the bachelor
of laws degree from the University of Texas law school. While
still a student in Austin, Garza worked on Johnson's early campaigns,
and he had remained a keen supporter during Johnson's runs for
successively higher offices. This loyalty gave Garza priority
over Yarborough's claims. See Louise Ann Fisch, All Rise: Reynaldo
G. Garza, the First Mexican American Federal Judge (College
Station: Texas A&M University Press, 1996), 70-77. Although
this appointment pleased the Mexican American community in principle,
it was also a practical reminder that Johnson had overridden preferences
held by many Mexican Americans. Julie Leininger Pycior, LBJ
and Mexican Americans: The Paradox of Power (Austin: University
of Texas Press, 1997), 116-24. See also Allsup, The American
G.I. Forum, 133, and San Miguel, Jr., "Let All of
Them Take Heed," 164-65. (Allsup and San Miguel incorrectly
identify Garza as a Republican, apparently because he had joined
Texas Governor Allan Shivers in supporting the Republican Eisenhower
against Democrat Adlai Stevenson.)
92.
This requires clarification. Garza was not actually first, but
he was the first federal judge to be widely recognized as
a Mexican American. In 1947, President Truman appointed Harold
R. Medina, the son of a Mexican father and an Anglo mother, to
the Southern District of New York. Medina was later promoted to
the Second Circuit. Judge Medina dedicated a volume of his collected
writings and speeches "to my father, Joaquin Adolfo Medina,
born in the city of Merida, Yucatan, Mexico, on November 27, 1858."
See Harold R. Medina, The Anatomy of Freedom, ed. C. Walter
Barrett (New York: Henry Holy and Co., 1959), v. But Medina was
not regarded as Hispanic by Anglo politicians and apparently was
not raised as a Hispanic. Therefore, Medina's appointment is generally
not regarded as politically significant as Garza's. The fact of
an earlier, unrecognized or unremarked Hispanic on the federal
bench underscores the fluidity of racial and ethnic identity among
Hispanics. Fisch, All Rise, 177, n. 1; Sheldon Goldman,
Picking Federal Judges: Lower Court Selection from Roosevelt
through Reagan (New Haven: Yale University Press, 1997), 196,
n. kk.
93.
Armando Navarro, The Cristal Experiment: A Chicano Struggle
for Community Control (Madison: University of Wisconsin Press,
1998), 17-51. For political developments in the same city after
the Chicano movement emerged, see ibid.; Armando L. Trujillo,
Chicano Empowerment and Bilingual Education: Movimiento Politics
in Crystal City, Texas (New York: Garland Publishing, 1998);
and Montejano, Anglos and Mexicans in the Making of Texas,
282-84.
94. Manuel P. Servín, "The Post-World War II Mexican-American,
1945-1965: A Non-Achieving Minority," in The Mexican-Americans:
An Awakening Minority, ed. Manuel P. Servín (Beverly
Hills: Glencoe Press, 1970), 144. See "Latin Leaders Walk
Out on U.S.," Texas Observer, 15 April 1966, 5. Juan
Gómez-Quiñones, Chicano Politics: Reality and
Promise, 1940-1990 (Albuquerque: University of New Mexico
Press, 1990), 106-8. For the significance of this event, see Allsup,
The American G.I. Forum, 160-61. For jealousies between
Blacks and Mexican Americans in the mid-1960s, see Fred Barbaro,
"Ethnic Resentment," in Black/Brown/White Relations:
Race Relations in the 1970s, ed. Charles V. Willie (New Brunswick:
Transaction Books, 1977), 77-79.
95.
Helen Rowan, "A Minority Nobody Knows," in Mexican
Americans in the United States: A Reader, ed. John H. Burma
(Cambridge: Schenkman Publishing, 1978), 29.
96.
San Miguel, Jr., "Let All of Them Take Heed," 164-69;
and San Miguel, Jr., "Mexican American Organizations and
the Changing Politics of School Desegregation," 708-9.
97.
The Supreme Court first described "de facto segregation"
in Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1 (1971), in which the justices upheld court-ordered busing.
98.
Armando Navarro, Mexican American Youth Organization: Avant-Garde
of the Chicano Movement in Texas (Austin: University of Texas
Press, 1995), 22-36; Gómez-Quiñones, Chicano
Politics: Reality and Promise, 101-5. Older leaders like Dr.
Garcia were also impressed by the determination demonstrated through
marches and strikes, and they noticed when the farm workers' plight
attracted national attention In late September 1966, Congress
had amended the Fair Labor Standards Act (FLSA), ending agricultural
workers blanket exemption from the statute. 29 U.S.C. sec. 206(5).
Subsection 5 was added by Pub.L. 89-601, sec. 302; 80 Stat. 830.
99.
See Gómez-Quiñones, Chicano Politics: Reality
and Promise, 118-19; Ignacio M. Garcia, Chicanismo: The
Forging of a Militant Ethos among Mexican-Americans (Tuscon:
University of Arizona Press, 1997), 1-4; and Armando B. Rendón,
Chicano Manifesto: The History and Aspirations of the Second
Largest Minority in America (Berkeley: Ollin and Associates,
1996; first published, 1971), 200-202. For a discussion of the
generational issues that led to the rise of the Chicano challenge
to the "Mexican American Generation," see Armando Gutiérrez
and Herbert Hirsch, "The Militant Challenge to the American
Ethos: 'Chicanos' and 'Mexican Americans,'" in La Causa
Politica: A Chicano Politics Reader, ed.
F. Chris Garcia (Notre Dame: University of Notre Dame Press, 1974),
86-103; Mario T. Garcia, Mexican Americans: Leadership, Ideology,
and Identity, 1930-1960 (New Haven: Yale University Press,
1989), 13-22; and Carlos Munoz, Youth, Identity, Power: The
Chicano Movement (New York: Verso, 1989).
100.
Navarro, Mexican American Youth Organization, 174, 198.
Tension grew between generations, and the division was widened
by the broader issues of the day. For example, after St. Mary's
University students founded the Mexican American Youth Organization
(MAYO) in 1967, they used it as a forum to criticize and to protest
the Vietnam conflict as evidence of the continued imperialism,
violence, and racism they alleged was a major theme in U.S. history.
U.S. Representative Henry B. Gonzalez of San Antonio, the longtime
friend of President Johnson, responded by denouncing Chicanos'
militant rhetoric as "hate." He repeatedly defended
Mexican Americans' patriotism on the floor of the House. In 1969,
Gonzalez rejected the label "Chicano" and described
himself as "an American of Spanish surname and of Mexican
descent . . . what is commonly referred to as a Mexican American."
Henry B. Gonzalez, from the Congressional Record, 22 April
1969, 91st Congress, 1st Session, "An Attack on Chicano Militants,"
in A Documentary History of the Mexican Americans, ed.
Wayne Moquin with Charles Van Doren (New York: Praeger, 1971),
358.
101.
42 U.S.C. sec. 2000(a); see Salinas, "Mexican-Americans and
the Desegregation of Schools in the Southwest," 939.
102.
See "Comment: The Courts, HEW, and Southern School Desegregation,"
Yale Law Journal 77 (1967): 321.
103.
Singleton v. Jackson Municipal Separate School District, 348
F.2d 729 (5th Cir., 1965). The case is known as Singleton I.
In Singleton II, which followed the next year, the
Fifth Circuit judges declared the HEW guidelines to be minimum
standards and made it clear that district judges should not "abdicate"
their responsibilities regarding desegregation merely by conforming
to the guidelines. 355 F.2d 865 (5th Cir., 1966).
104.
San Miguel, Jr., "Let All of Them Take Heed," 175-77.
105.
Noted in Rangel and Alcala, "Project Report: De Jure Segregation
of Chicanos in Texas Schools," 365-66, nn. 352-69. Also see
Testimony of Jerold D. Ward, 11 December 1968, in U.S. Commission
on Civil Rights, Hearing Held in San Antonio, Texas, 9-14 December
1968 (Washington, D.C.: U.S. Commission on Civil Rights, 1968),
331-39.
106.
Carlos Guerra, "Discourse By an Other," Texas Observer,
27 October 1967, 14.
107.
Salinas, "Mexican-Americans and the Desegregation of Schools
in the Southwest," 941; San Miguel, Jr., "Mexican American
Organizations and the Changing Politics of School Desegregation,"
708-9.
108.
Fees for counsel were provided in some employment discrimination
cases under Title VII of the Civil Rights Act of 1964. 42 U.S.C.
sec. 2000e-5(k). Congress later enacted provisions similar to
those DeAnda suggested. See the "Emergency School Aid Act
of 1972" (20 U.S.C. sec. 1617) and the "Civil Rights
Attorneys' Fees Awards Act of 1976" (42 U.S.C. sec. 1988).
109.
James DeAnda, "Civil Rights--Need For Executive Branch to
Take Positive Steps to Rectify Discrimination in Jury Selection,
Voting Eligibility and School Enrollment," in Inter-Agency
Committee on Mexican American Affairs, The Mexican American:
A New Focus on Opportunity (Washington, D.C.: U.S. Government
Printing Office, 1967), 220-21. President Johnson created the
Inter-Agency Committee in response to Mexican American complaints
that his administration had ignored their community's problems.
The El Paso meetings became yet another point of contention, however,
when the committee excluded the "militant" Mexican American
leaders. See Allsup, The American G.I. Forum, 136-41; and
Ramos, The American GI Forum, 99-106. In 1969, Congress
established the "Committee on Opportunities for Spanish Speaking
People" to succeed the Inter-Agency Committee. Public Law
181, 91st Cong., 83 Stat. 838 (1969).
110.
Tijerina initiated the project after meeting and discussing the
need for such an organization with Jack Greenberg, who was the
LDF's chief during the 1960s. Tijerina sought funding from the
Ford Foundation at Greenberg's suggestion. See Karen O'Connor
and Lee Epstein, "A Legal Voice for the Chicano Community:
The Activities of the Mexican American Legal Defense and Education
Fund, 1968-82," in The Mexican American Experience: An
Interdisciplinary Anthology, ed. Rodolfo O. De La Garza, Frank
D. Bean, Charles M. Bonjean, Ricardo Romo, and Rodolfo Alvarez
(Austin: University of Texas Press, 1985), 284-85; San Miguel,
Jr., "Let All of Them Take Heed," 169-72; and
Gómez-Quiñones, Chicano Politics: Reality and
Promise, 110-12.
111.
See "Testimony of Pete Tijerina," 13 December 1968,
in U.S. Commission on Civil Rights, Hearing Held in San Antonio,
Texas, 9-14 December 1968 (Wash., D.C.: U.S. Commission on
Civil Rights, 1968), 653-55. Richard L. Dockery, the Southwest
regional director of the NAACP, had also testified in support
of similar proposals. He told the commission that his organization
included many Mexican American members and had recently established
offices in San Antonio. See "Testimony of Richard L. Dockery,"
9 December 1968, ibid., 92-93. Richard Alatorre, a staff member
of the NAACP's Legal Defense Fund's Southwest office, followed
Tijerina on the program in San Antonio. He testified that the
two legal defense organizations were making common cause to fight
discrimination against all minority groups in the Southwest. See
"Testimony of Richard Alatorre," 13 December 1968, ibid.,
656-57.
112.
See "Testimony of Pete Tijerina," Hearing Held in
San Antonio, 653-55. The civil rights commissioners also heard
testimony from education professor George I. Sanchez of the University
of Texas, who had testified as an expert witness during DeAnda's
1957 case. Like DeAnda and Tijerina, Sanchez described persistent
discrimination against Mexican Americans that resulted from historical
and cultural conditions specific to the Southwest. See "Testimony
of George I. Sanchez," 9 December 1968, ibid., 90-101. The
commission hearings were summarized in "New Accent on Civil
Rights: The Mexican American," Civil Rights Journal 2
(Winter 1969): 16-23.
113.
This ultimately proved to be a wise decision, because the U.S.
attorney general waited until late 1969 before joining in a Mexican
American lawsuit, Perez v. Sonora Independent School District,
Civ. No. 6-224 (N.D.Tex, 1969). Noted in Birnberg, "Notes:
Brown v. Board of Education Applies to Mexican-American
Students," 339, n. 10.
114.
For discussion of variations on these "transfer" and
"choice" rules, see Rangel and Alcala, "Project
Report: De Jure Segregation of Chicanos in Texas Schools,"
327-29, 342-43, n. 216, and 348-49; Birnberg, "Notes: Brown
v. Board of Education Applies to Mexican-American Students,"
339; and Betsy Levin and Philip Moise, "School Desegregation
Litigation in the Seventies and the Use of Social Science Evidence:
An Annotated Guide," Law and Contemporary Problems 39
(1975): 76-80.
115.
See Rangel and Alcala, "Project Report: De Jure Segregation
of Chicanos in Texas Schools," 342, 359. See Gary A. Greenfield
and Don B. Kates, Jr., "Mexican Americans, Racial Discrimination,
and the Civil Rights Act of 1866," California Law Review
63 (1975): 662, 682. DeAnda sued the CCISD at a key moment
in the history of the desegregation controversy. Before 1968,
many federal judges presiding in school desegregation cases limited
their participation to formally neutral supervisory activities.
Few seemed concerned with the actual content of the early plans--hence
the judicial approval for token desegregation under grade-a-year
and freedom-of-choice schemes. The Fifth Circuit judges had authorized
school desegregation fair and nondiscriminatory "freedom
of choice" plans among the preferred options for desegregation.
See Singleton I-II and United States v. Jefferson County
Board of Education, 372 F.2d. 836 (5th Cir., 1966); en
banc, 380 F.2d 385 (5th Cir., 1967). See also Nathaniel E.
Gozansky, Kenneth Gignilliat, and William Horwitz, "School
Desegregation in the Fifth Circuit," Houston Law Review
5 (1968): 946-66.
116.
In late 1968, the HEW examiners advised the CCISD superintendent
that the school board should redraw the attendance boundaries
to break up the segregated schools. HEW also suggested that the
CCISD school board allow "majority-to-minority" transfers
to enable students who were in the majority at a minority school
voluntarily to shift to another school. Such students would be
in the minority at the new school, but they would be taught in
a desegregated environment. See Texas Advisory Committee to the
U.S. Commission on Civil Rights, School Desegregation in Corpus
Christi, Texas (Washington, D.C.: U.S. Government Printing
Office, 1977), 42. For majority-to-minority transfer rules, see
Swann, 402 U.S. 1 (1971), 26-27.
117.
"They Call the Issue Busing," Texas Observer, vol.
63, no. 22 (5 November 1971), p. 5.
118.
See Texas Advisory Committee to the U.S. Commission on Civil Rights,
School Desegregation in Corpus Christi, 8-14, 42-43; and
"Testimony of Paul Montemayor," in Texas Advisory Committee
to the U.S. Commission on Civil Rights, Hearings in Corpus
Christi, Texas, 4-5 May 1976 (Washington, D.C.: U.S. Government
Printing Office, 1976), 1:67-68. Also noted in U.S. Commission
on Civil Rights, Fulfilling the Letter and Spirit of the Law:
Desegregation of the Nation's Public Schools (Washington,
D.C.: U.S. Government Printing Office, 1976), 108. Finally, see
Allsup, The American G.I. Forum, 144.
119.
Cisneros v. Corpus Christi Independent School District, Civil
Action (Civ.A.) No. 68-C-95, U.S. District Court for the Southern
District of Texas (S.D.Tex., 1972), Corpus Christi Division [hereafter
cited as Cisneros v. CCISD]; Docket Sheet, p. 2. Files
located at NARA-SWA, Civil cases, U.S.C.A., Fifth Circuit, Record
Group (RG) 276, Box 6104, Folder for Case No. 71-2397, ".
. . 1 of 2."
120.
Although DeAnda probably had the most experience in school desegregation
litigation in Corpus Christi, the suit against the large, urban
CCISD was more ambitious than any he had pursued against the Driscoll
and Odem school districts. He recruited other reformminded attorneys
to assist him, among them Houston's Chris Dixie. Dixie was representing
the plaintiffs in a federal civil rights suit related to their
abortive attempt to organize a farm workers' union in Texas. See
Francisco Medrano et al. v. A.Y. Allee et al., 347 F.Supp.
605 (S.D.Tex., 1972) [Brownsville Division; Civ. No. 67-B-36],
and Richard Bailey, "The Starr County Strike," Red
River Valley Historical Review 4 (1979): 47-48. The intersection
of the goals of organized labor with the cause of Mexican American
civil rights was a recurrent theme during the 1960s. The brief
domination by Mexican Americans of the Crystal City municipal
council in the early 1960s was another example. The campaign was
led by the Political Association of Spanish Speaking Organizations
(PASSO, or PASO), but the group received key support from the
Teamsters. David Montejano, Anglos and Mexicans in the Making
of Texas, 282-84; and Navarro, The Cristal Experiment,
17-51.
121.
See Rangel and Alcala, "Project Report: De Jure Segregation
of Chicanos in Texas Schools," 342, 359.
122.
Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex.,
1970), 601-2.
123.
In the junior highs, one-third of the Mexican American and black
students attended schools where the non-Anglo enrollment was greater
than 90 percent. One-quarter of the Anglo students attended schools
where the non-Anglo enrollment was less than 10 percent of the
student body. Finally, in the CCISD elementary schools, forty-one
percent of the Mexican Americans and African Americans attended
schools where over 90 percent of the students were non-Anglo.
Thirteen percent of the Anglo children attended elementary schools
with less than 10 percent non-Anglo enrollment. Cisneros v.
Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 608.
All of the figures in the text are approximate in the case record,
and I have further rounded the numbers.
124.
Ibid.
125.
For the quoted passages and other excerpts of Dr. Carter's testimony
regarding the history of discrimination in social and economic
areas, see ibid., 612, n. 38.
126.
Ibid., 606, n. 30.
127.
Ibid.
128.
Ibid., 602, n. 11, 616-17, n. 49.
129.
Ibid., 606.
130.
Docket Sheet, p. 3; Cisneros v. CCISD. NARA-SWA: Civil
cases, Fifth Circuit, RG 276, Box 6104, Folder for Case No. 71-2397,
". . . 1 of 2."
131.
Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex.,
1970), 603, n. 26. Judge Seals quoted Professor Haskew from the
hearing transcript, at p. 1223.
132.
Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex.,
1970), 600-601. See also Docket Sheet, p. 4; Cisneros v. CCISD.
NARA-SWA: Civil cases, Fifth Circuit, RG 276, Box 6104, Folder
for Case No. 71-2397, ". . . 1 of 2."
133.
See Amendments to the Federal Rules of Civil Procedure (Rule 23),
383 U.S. 1029 (1966), 1047.
134.
See Tijerina v. Henry, 48 F.R.D. 274 (D.N.Mex., 1969);
appeal dismissed, 398 U.S. 922 (1970). Noted in Birnberg,
"Notes: Brown v. Board of Education Applies to Mexican-American
Students," 342, n. 29. Also, see Richard Delgado and Victoria
Palacios, "Mexican-Americans as a Legally Cognizable Class
Under Rule 23 and the Equal Protection Clause," Notre
Dame Law Review 50 (1975): 393.
135.
Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex.,
1970), 604.
136.
Ibid., 605.
137.
Ibid., 605, esp. n. 28. Judge Seals noted that "[i]t was
decided as early as 1886 that although the Fourteenth Amendment
may have been primarily concerned with Negroes, its protection
is certainly not limited to them." See Yick Wo v. Hopkins,
118 U.S. 356 (1886). Moreover, he quoted Justice Miller's
opinion for the Supreme Court in The Slaughter House Cases
to the effect that if "Mexican peonage or the Chinese
coolie labor system" in U.S. territory evolved into a variety
of slavery, then the Thirteenth Amendment would outlaw it. And,
Miller had continued, "if other rights are assailed by the
States which properly and necessarily fall within the protection
of [the Reconstruction Amendments], that protection will apply,
though the party interested may not be of African descent."
See The Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873),
72.
138.
Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex.,
1970). See Greenfield and Kates, Jr., "Mexican Americans,
Racial Discrimination, and the Civil Rights Act of 1866,"
662.
139.
Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex.,
1970), 605, n. 28.
140.
Ibid., 606-7.
141.
Ibid., 607. Seals noted that the myriad Mexican American organizations,
"such as LULAC and the G.I. Forum, and now MAYO, were called
into being in response to this problem," and that "young
Mexican-Americans have recently begun to call themselves Chicanoes
[sic], and their movement, La Roza [sic]. During the pendency
of this suit, these Chicanoes [sic] have been trying to get La
Roza [sic] on the Texas ballot as La Roza [sic] Unida Party."
Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex.,
1970), 615, esp. n. 39. For the creation of the La Raza Unida
Party, see Gómez-Quiñones, Chicano Politics:
Reality and Promise, 158-59.
142.
Ibid., 608, n. 34. Judge Seals took "judicial notice"
of the 1960 U.S. Census of Population and a special study by the
Bureau of the Census, entitled "Persons of Spanish Surname,"
which was based on the 1960 Census. See Cisneros v. Corpus
Christi ISD, 608, nn. 31, 33.
143.
Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex.,
1970), 615-16.
144.
Ibid., 616-17, esp. n. 48.
145.
Ibid., 617-20, see esp. nn. 50-57. For this "calculated"
segregation, see also Rangel and Alcala, "Project Report:
De Jure Segregation of Chicanos in Texas Schools," 326.
146.
Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex.,
1970), 620, and n. 58.
147.
Ibid., 627.
148.
Keyes v. School District Number One, Denver, 413 U.S. 189
(1973), 198. For the refusal to review Cisneros, see 413
U.S. 920 (1973). San Miguel, Jr., "Let All of Them Take
Heed," 180-81.
149.
This story is taken up in Guadalupe San Miguel, Jr., Brown,
Not White: School Integration and the Chicano Movement
in Houston (College Station: Texas A&M University Press/Center
for Mexican American Studies at University of Houston, 2001).
See also Salinas, "Mexican-Americans and the Desegregation
of Schools in the Southwest," 951.
150.
Patterson, Brown v. Board of Education: A Civil Rights Milestone
and Its Troubled Legacy, xiv, xxvii-xxix.
151.
Derrick A. Bell, Jr., "Brown v. Board of Education and
the Interest-Convergence Dilemma," Harvard Law Review
93 (1980): 518.
152.
See Harvard Sitkoff, The Struggle for Black Equality, 1954-1980
(New York: Hill and Wang, 1981), 44-48.
153.
Matt S. Meier and Feliciano Ribera, Mexican Americans/American
Mexicans: From Conquistadors to Chicanos (New York: Hill and
Wang, 1993; rev. ed. of The Chicanos, 1972), 211. See also
Montejano, Anglos and Mexicans in the Making of Texas, 262-87;
Walter El-wood Smith, Jr., "Mexicano Resistance to Schooled
Ethnicity: Ethnic Student Power in South Texas, 1930-1970"
(Ph.D. diss., University of Texas at Austin, 1978), 288-97; and
U.S. Commission on Civil Rights, Mexican-American Educational
Study, Report I: Ethnic Isolation of Mexican-Americans in the
Public Schools of the Southwest (Washington, D.C.: U.S. Commission
on Civil Rights, 1970), 26.
154.
Navarro, Mexican American Youth Organization, 80-87.
155.
Ibid., 157-58. In its early years, MALDEF also accepted minor
claims of the "legal aid" variety, concerning minor
disputes, which did not actually require legal counsel. O'Connor
and Epstein suggest that, despite some victories, MALDEF was not
an effective constitutional litigator until at least 1973; moreover,
even then, it lost more often than it won. O'Connor and Epstein,
"A Legal Voice for the Chicano Community," 285.
156.
Rubén Donato, The Other Struggle for Equal Schools:
Mexican Americans in the Civil Rights Era (Albany: State University
of New York Press, 1997), 12.
157.
The next year, President Jimmy Carter elevated Garza--after Garza
declined an offer to become U.S. attorney general--to the Fifth
Circuit, where he became the first Mexican American on that
influential appellate court. Judge Garza had been chief judge
of the Southern District since 1975. See Fisch, All Rise, 151-52.
Mexican Americans were lobbying for more judges that represented
their minority group. See "5 Groups Demanding 2 Spanish-named
Judges in West Texas District," Houston Post, 19 July
1979, 7A. Judge Garza's replacement was Filemon B. Vela, the third
Mexican American to serve in the Southern District. Vela was born
1 May 1935 in Harlingen, Texas. After serving as a U.S. Army private
from 1957 to 1959, he attended law school at St. Mary's University
in San Antonio, where he earned his J.D. in 1962. He briefly entered
private practice in Harlingen, then moved to Brownsville in 1963.
Vela served there as a city commissioner in the early 1970s. In
1975 he became a state judge for Cameron and Willacy Counties,
in the 107th District. He was still there when the president appointed
him to Garza's old seat in Brownsville, which he assumed on 18
June 1980. "Vela," in Judges of the United States.
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