FORUM: WHITNESS AND OTHERS: MEXICAN AMERICANS AND AMERICAN LAW

"Another White Race:"
Mexican Americans and the Paradox of
Whiteness in Jury Selection

Clare Sheridan

In 1954, seventy-four years after the U.S. Supreme Court held that African Americans could not be banned from jury service by statute, and fifty-four years after it ruled that they could not be purposely excluded from venires due to their "race or color" through court, executive, or administrative action,1 the Court found that Pete Hernandez had been denied equal protection of the laws under the Fourteenth Amendment. His constitutional rights were violated because of the de facto, systematic exclusion of Mexican Americans from the pool of potential jurors--and thus juries--in Jackson County, Texas.2	1
In arguing the case before state courts, civil rights lawyers for the appellant were confronted with a paradox: because Mexican Americans were classified as white by the government and not as a separate race, lower courts held that they were not denied equal protection and there was no violation of the Fourteenth Amendment. Attorneys for the state of Texas and judges in the state courts contended that the amendment referred only to racial, not "nationality," groups. Since Mexican Americans were tried by juries composed of their racial group--whites--their constitutional rights were not violated. Using rhetorical analysis, I discuss the implications of the arguments in Hernandez v. Texas, which held that "nationality" groups could be protected under the Fourteenth Amendment. I analyze the language used in this and other cases about jury selection to impart how community norms helped to define and circumscribe the meaning of citizen-ship for Mexican Americans, as well as to shape their strategies to gain full and equal citizenship.	2
I introduce the case by providing the historical context of Mexican Americans' social and legal status in Texas from World War I through World War II. I describe their initial efforts to challenge their de facto exclusion from jury panels. I then summarize major precedents prohibiting discrimination in jury selection and explain why Texas state courts declined to apply these to cases involving Mexican Americans. The arguments described shaped the strategies used by the attorneys in Hernandez. This introduction is followed by a close reading and analysis of the terminology chosen in the Hernandez case by the state attorneys and judges, by the attorneys for the appellant, and by the Supreme Court. I show that these choices constituted strategies to construct Mexican American's place in the constitutional order and to define their participation as citizens. Finally, I explore the congruence of whiteness, citizenship, and American identity.	3
The section entitled "Citizenship and Racial Identity" further explores the themes raised by the terminology chosen in the Hernandez case, but in a broader context. In the last major section, "Citizenship as Social Standing," I suggest that the composition of juries is an indicator of the nation's self-understanding at a particular point in time and that Hernandez revealed America's self-understanding to be racialized. I then discuss how the strategy chosen by the Mexican American attorneys for the appellant upheld the power of whiteness, while partially challenging America's racialized self-understanding.	4
Historical Context
In 1848, the Treaty of Guadalupe Hidalgo set the framework for Mexicans who resided in the ceded territories to become U.S. citizens and established a precedent for allowing Mexicans to naturalize. Indeed, many prominent Mexican Americans participated in local governance in Texas, California, and New Mexico. However, as noted historian David Montejano shows, Mexican Americans' influence in governance waned as they lost their property.3 Beginning in the 1910s, Anglo "newcomers" in Texas further challenged Mexican Americans' citizenship rights and even their very inclusion in the polity. A number of factors converged to create the conditions for discriminatory treatment of Mexicans and Mexican Americans. First, as a result of the Mexican Revolution beginning in 1910, many poor Mexicans were displaced and fled across the border. Mexican immigration increased from 0.6 percent of total immigration in 1900-1909 to 3.8 percent from 1910-1919.4 In 1924 the proportion of Mexicans entering the U.S. legally skyrocketed to 12.4 percent of total immigration and rose to a high of 19.9 percent by 1927.5 The sudden surge was a direct result of the passage by Congress of the Immigration Act of 1924, commonly known as the Quota Act.6 In this act, Congress exempted immigrants from western hemisphere nations from all provisions of the act because the president wanted to maintain friendly relations with neighboring countries and had threatened to veto the act if passed without the exemption. Agricultural and industrial concerns in the upper Midwest began recruiting Mexicans, who followed the jobs. For the first time, white Americans across the nation began to consider Mexican immigrants as a threat. Second, as Montejano shows, the development of large-scale commercial agriculture in the southwest drove the demand for farm workers and for "cheap labor." Large-scale production not only made small farms uncompetitive but also created a migratory labor force. This undermined and depersonalized long-term relationships between Anglo landowners and Mexican workers and altered the structure of social relations.	5
As Montejano shows, due to these changes, Mexican Americans found that their image in the minds of white Americans in the southwest was transformed. Anglos rarely distinguished between Mexicans and Mexican Americans and painted a picture of "Mexicans" as an economic and cultural threat to America. In this period, Mexican Americans increasingly were denied many of the rights of citizens. Like the African American population, many were placed in segregated schools with inferior educational resources, barred from restaurants, movie theaters, bathrooms, and public swimming pools, and denied the possibility of living in white neighborhoods.	6
Yet none of this segregation was formally encoded in law. For legal purposes, Mexican Americans were white. They were counted as white in the census and, unlike non-whites (other than those from Africa), were able to naturalize.7 However, law clashed with perceptions of racial "reality," creating a citizenship status for Mexican Americans that many considered to be legal fiction. This gap between their legal and social standing was reflected in local interpretations of the law and in the regulation of their political participation through mechanisms such as poll taxes, literacy tests, and blue ribbon jury commissions. This unequal treatment continued through the war years and into the 1950s. Mexican Americans' unequal status was especially evident in their representation on juries. While not prohibited by law from serving, they were almost universally excluded on the grounds that they were not qualified to serve.	7
As early as the 1920s, civil rights activists emphasized the importance of securing Mexican American participation on juries. In this era, emerging Mexican American civic groups in Texas often addressed civil rights issues informally, through discussions with and letters to Anglo public officials requesting reform. For instance, members of the Order of Sons of America, which was established in 1921, claimed that the Order secured for Mexican Americans the rights to serve on juries and sue Anglos in Corpus Christi.8 One noted, "'The first thing we did was to write a request that we be admitted to the jury. I had noticed that in court cases, Mexicans were sent to jail for offenses for which Americans were given suspended sentences or let off.' The request was acceded to, and those qualified by knowledge of English, etc., for jury service have been admitted."9 However, the Order's claims to victory were shortsighted, as wholesale exclusion of Mexicans continued to be widespread in Texas.	8
After a lull in activism in the 1930s due to the Great Depression and repatriation,10 in the early 1940s a small contingent of Mexican American lead-ers began a concerted attack through the courts on discrimination against Mexican Americans. These leaders' expressed purpose was to test the state's new Good Neighbor Policy.11 In 1943, the Mexican Minister of Labor declared that braceros (guest workers) would no longer be sent to Texas because of the poor treatment and racial discrimination they experienced there. The Texas governor responded by issuing a proclamation prohibiting discrimination against all "caucasians," aimed at reassuring Mexico that Mexicans and Mexican Americans would be treated as white and that Texas was a "good neighbor."12 These activists contacted national civil rights organizations for advice on how to test the Good Neighbor policy. In one letter M. C. Gonzalez, who brought an early, unsuccessful jury discrimination case to trial, thanked an American Civil Liberties Union (ACLU) representative for providing him with an outline of a procedure to attack jury discrimination based on the strategy used in the landmark case Norris v. Alabama.13 A letter from the Texas Civil Rights Fund (TCF) to the Robert Marshall Civil Liberties Trust requested funds to support Mexican Americans' cases addressing jury discrimination, the white man's primary, school segregation, real estate covenants, and state sponsored terror. Another letter from a TCF officer to a League of United Latin American Citizens (LULAC) officer explains why they declined to litigate a jury discrimination case involving a Mexican American, demonstrating that activists carefully selected test cases.14 This coordination resulted in several successes, including Westminster School District vs. Mendez, on school segregation, and Clifton v. Puente, on restrictive real estate covenants, and some failures, like Terrell Wells Swimming Pool v. Rodriguez. Lawyers fighting discrimination in jury selection, however, repeatedly lost their cases.15	9
The qualifications for petit jury service in Texas were: that a juror be a male citizen eligible to vote, a freeholder or householder in the county, that he be of sound mind, and that he be able to read and write.16 In addition to these requirements, grand jurors had to be of good moral character and could not have been convicted of, or under indictment for, theft or a felony. There were two exceptions to these requirements. First, "the decisions hold that it is not necessary that a person should read and write the English language fluently." That is, judging the ability to read and write was left to administrative discretion. Second, if the state could not find enough qualified jurors, they could disregard the payment of poll taxes as a prerequisite of the "eligibility to vote" requirement.17 The requirement, reduced to a minimum, was to be a male citizen of the county who could, in theory, exercise the right to vote.	10
The jury selection process was facially neutral. A judge appointed several jury commissioners, who selected grand and petit jurors from county assessment rolls.18 However, based on numerous anecdotal reports, it is clear that discrimination against Mexican Americans in jury selection was common. Pauline Kibbe, an advocate for Mexican Americans and Mexicans in the U.S., and executive secretary of the Good Neighbor Commission (1943-1947), estimated that by 1946 fifty counties in Texas with significant Mexican origin populations (fifteen to forty percent) had never called a Mexican American for jury service, even in civil suits. She related a remarkable story of a challenge to a jury panel with one hundred prospective Anglo jurors, despite a countywide "Mexican" population of thirty percent. "Rather than establish the precedent of allowing a Latin American to serve on either a grand jury or a trial jury, the authorities released the accused, and he has never been brought to trial."19	11
This practice denied people of Mexican ancestry the right to equal protection outlined in the Fourteenth Amendment.20 Because the possibility of participating in the judicial process was proscribed, it also contravened all Mexican Americans' equal protection rights as prospective jurors. By depriving them of the opportunity to exercise their right to participate on the same terms as others, the state denied that they were peers, or equal members of the polity. Peerage implies a combination of civil and social status. Legally, Anglos could not deny that Mexican Americans were citizens, but they were able to maintain and reinforce social distance and erect legal distinctions (such as qualifications for jury service) by not treating Mexican Americans as peers.	12
In 1931 Alonso Perales, a lawyer and civic educator, expressed outrage about the unpunished murders of several people of Mexican descent in Willacy and Hidalgo counties in Texas. He emphasized that the presence of Mexican Americans on juries was imperative for justice. "We ought to insist that on all juries . . . there is adequate Mexican American representation. In the murder cases that I just referred to the grand juries of Willa-cy and Hidalgo counties refused to prosecute the presumed killers. Perhaps this would not have occurred if on those grand juries there had been adequate Mexican American representation."21 Further, he recognized the role of local officials in denying those of Mexican descent civil rights and explicitly invoked the Fourteenth Amendment as the source of his claim to equal treatment under the law. "In none of these cases did they punish the murderers, which shows that the authorities do not grant to the unfortunate victims equal protection of the laws guaranteed to us in the fourteenth amendment of the Constitution of the United States of America. In these cases the authorities were deficient in their duty due to racial prejudice or to their incompetence."22 Finally, he urged Mexican Americans to vote against these authorities and for officials who would truly represent them.	13
Securing Mexican American participation on juries remained a priority until the Hernandez case reached the U.S. Supreme Court. A lawyer for Hernandez identified jury participation as one of three principal civil rights issues, along with school desegregation and an end to restrictive real estate covenants. With optimism, he commented that Hernandez "marks the end of legal relief for our basic social ills. . . . This was the last major issue left for the courts to decide."23	14
Clearly, jury service was viewed by Mexican American civic leaders as vital to securing their political and civil rights. The connection between civil and political rights and social equality was made explicit, and they encouraged Mexican American citizens to exercise their rights in order to influence the political process.	15
Prior Jury Discrimination Cases
The Civil Rights Act of 1875 guaranteed African Americans the right to serve on juries.24 The first U.S. Supreme Court case that dealt with non-white representation on juries, Strauder v. West Virginia, held that jury service was included in the Fourteenth Amendment's guarantee to blacks of all the civil rights enjoyed by whites and that the exclusion by statute of a particular class of people based on "color" was unconstitutional, as it would stigma-tize them and create a category of second class citizens. The Court stated, "The very idea of a jury is a body of men composed of the peers or equals (as) . . . persons holding the same legal status in society as that which he holds." 25 But in the same year, in Virginia v. Rives, the Court did not find the de facto exclusion of blacks from juries problematic.26 In Strauder blacks were excluded from the jury pool by statute, while in Rives they were not. In case after case, citing Rives, the Court refused to find all-white juries unconstitutional so long as selection procedures were facially neutral. Similarly, the findings in Neal v. Delaware were overlooked until Norris. 27 In Neal the Court ruled that because African American males were electors under the Fifteenth Amendment, they were also eligible for jury service, which was drawn from voter rolls. However, instead of buttressing the strong statements made in Strauder, the Court reversed on the basis that it was incredible to say that there were no blacks qualified to serve. While it ruled that the defendant made a prima facie case of discriminatory treatment, it did not shift the burden to explain the discrimination to the state. Instead, denial by the state of discriminatory intent was deemed satisfactory.	16
In Carter v. Texas, the Court elaborated that discrimination against blacks based on their "race or color" in jury selection was illegal, whether effected through legislation, court decree, or executive or administrative discretion.28 However, the state courts interpreted this as prohibiting express or intentional discrimination. Until Norris v. Alabama in 1935, states were able to convince lower courts that the absence of blacks was by chance, not by design.29	17
In Norris, the U.S. Supreme Court reviewed the evidence for the first time. The Court declared that prima facie discrimination could be shown through a pattern of the absence of blacks from juries, not just jury pools. Once this was established, the burden shifted to the state to provide a convincing explanation for the underrepresentation of blacks. It promulgated the "rule of exclusion" as the standard for scrutiny, defined as "long continued, systematic and arbitrary exclusion of qualified negro citizens from service on juries, solely because of their race and color."30 One way to prove such exclusion was to show a dearth of names of the excluded group on jury rolls. In contrast to past cases, declarations that jury commissioners did not intend to discriminate were not accepted as evidence of nondiscrimination.31 That is, the Court ruled on the result of jury selection procedures, rather than on the stated intent of officials. Norris's exclusion rule was applied to cases of blacks in Texas in Smith v. Texas, Hill v. Texas, Cassell v. Texas, and Ross v. Texas.32 Similarly, in Juarez v. Texas, the Texas court held that the systematic exclusion of Catholics from juries was barred by the Fourteenth Amendment.33 Chief Justice Earl Warren referred to this case as analogous to Hernandez when he noted, "except where the question presented involves the exclusion of persons of Mexican descent from juries, Texas courts have taken a broader view of the scope of the equal protection clause."34	18
Yet in all of the state level decisions on the exclusion of Mexican Americans from juries, Texas courts denied that Norris was applicable. Instead, the courts held that Mexican or Mexican American defendants had to provide proof of intent to discriminate in each case. For example, in Lugo v. Texas, three years after Norris, the Texas court held that "In the absence of a showing of an abuse of trial court's discretion, Court of Criminal Appeals would not be authorized to disturb trial court's finding."35 As in cases prior to Norris, the court ruled that the appellant did not provide evidence that there were qualified members of his group available for jury service. There were three hundred to four hundred Mexican Americans who were eligible to vote in San Patricio County. In addition, the sheriff himself testified that in his fifteen-year tenure only two Mexican Americans had been summoned and none had served. But this was not deemed sufficient evidence. The sheriff had also testified, "I know as a fact of my own knowledge that the majority of the Mexican population of this county are unable to speak intelligently in English and are unable to read and write the English language."36 This, coupled with the jury commissioner's testimony that he would not have hesitated to put a Mexican American on the venire if he had known one who was qualified, outweighed indirect evidence of discrimination.37 The court disregarded Norris and instead cited as its authority the earlier Ross v. Texas, 7 S.W. 2d 1078 (1928), which held that the absence of African Americans from venires did not indicate intentional discrimination.	19
Mexican American attorneys of the late 1930s and early 1940s appealed to higher state courts to invalidate such local interpretations of citizenship law. They were not successful in their initial efforts. Haney López identifies two periods in Mexican American jury discrimination cases. In Ramirez v. Texas, Carrasco v. Texas, Sanchez v. Texas, Bustillos v. Texas, and, I would add, Lugo v. Texas, the appellants argued that the dearth of Mexican American jurors constituted discrimination against the "Mexican race."38 The Texas Court of Criminal Appeals ruled in all of these cases except Sanchez that exclusion was not on the basis of race, but due to a lack of qualified candidates. In particular, it speculated that few Mexican Americans read, wrote, and spoke English sufficiently to perform their duties as jurors.39 The sheriff in Lugo even questioned whether the "Mexicans" on the list were U.S. citizens.40 In addition to speculation about their educational qualifications, Mexican Americans' qualifications as Americans were suspect. Perhaps this is why the qualification argument was sustained even after Norris. Unlike blacks, "Mexicans" could be construed as foreigners, not native or belonging to America. However, this argument was increasingly indefensible in the 1940s, as the nation questioned its commitment to racial equality in the incipient phases of the Civil Rights movement.41 Moreover, in the late 1940s and early 1950s Mexican Americans who served in World War II organized to win veterans' benefits, highlighting their roles as citizens in protecting the nation. These veterans' organizations soon began to advocate for equality for all Mexican Americans.42	20
Sanchez v. Texas ushered in a new approach by state courts and, consequently, new rhetorical strategies by the attorneys for Mexican American appellants. In Sanchez, the appellant tried once again to argue that there was discrimination against "the Mexican race" in the jury selection process. This time, the Texas Court of Criminal Appeals decision referred to the appellant as being of "Mexican descent" or "Mexican nationality" and ruled that the "long, continued, and uninterrupted failure to call members of Mexican or Spanish nationalities for jury service did not constitute denial of 'equal protection of the law' to one of Mexican descent . . . since nationality and race do not bear the same relation within meaning of constitutional amendment."43 For the first time, the appellate court took official notice of Norris, but only to deny that it applied to "nationalities."44 While the court also addressed the issue of Mexican Americans' qualifications, the nationality argument was to become dominant.	21
In the cases that followed, Salazar v. Texas, Sanchez v. Texas, and Rogers v. Texas, state courts outlined two contentions that were to become the cornerstone of state attorneys' arguments in Hernandez. These contentions also enabled the courts to avoid ruling on whether Mexican Americans were qualified to be jurors and to circumvent the equal protection issue. First, the justices promulgated the "two classes theory" that the Fourteenth Amendment discusses and applies to only two classes of people--the black and white races. They further claimed that "Mexicans" were part of the white race, and, therefore, as whites, they were not discriminated against when juries were constituted solely of whites. "We said in Sanchez v. State, 243 S.W. 2d 700, that 'Mexican people . . . are not a separate race but are white people of Spanish descent.' In contemplation of the Fourteenth Amendment, Mexicans are therefore members of and within the classification of the white race, as distinguished from members of the Negro race."45	22
Second, they argued that "nationality groups" did not carry the same constitutional meaning as racial groups did, and because "Mexicans" were a nationality group, the equal protection clause did not apply to them. As such, they did not merit protection as a group and were required to prove any bias claims based on individual prejudice in each particular case. Underrepresentation of Mexican Americans on juries was not enough to prove intent to discriminate. Further, no court had applied Norris's exclusion rule to nationality groups. The Texas Court of Criminal Appeals concluded that the situation had not changed, so the reasoning in Sanchez applied to Hernandez. "In 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 constitutional provision (Fourteenth Amendment) mentioned, we shall continue to hold that (given the statue was obeyed) in the absence of proof showing express discrimination by administrators of the law, a jury so selected in accordance therewith is valid."46	23
The court concluded that Mexican Americans were requesting a special status with privileges that other nationality groups did not have. It feared this could open the floodgates to claims of proportional representation of groups on juries. This "would write into the equal protection clause proportional representation not only of races, but of nationalities."47 Further, it would provide Mexicans as a nationality group within the white race with special status and privileges to which other whites were not entitled. This would deny other whites equal protection. "It is apparent, therefore, that appellant seeks to have this court recognize and classify Mexicans as a special class within the white race and to recognize that special class as entitled to special privileges in the organization of grand and petit juries in this state. To so hold would constitute a violation of equal protection, because it would be extending to members of a class special privileges not accorded to all others of that class similarly situated."48	24
Because the court did not recognize the validity of Mexican Americans' claim to protection under the Fourteenth Amendment, it was able to ignore bias against them as a class of people and insist on proof of intentional discrimination by a juror or one of the jury commissioners in each individual case. While recognizing that Mexican Americans may have experienced discrimination, the court denied that the Fourteenth Amendment protected classes of people other than "blacks" and "whites." As long as members of these two groups were not systematically excluded, the Constitution was not violated. The irony of absorbing Mexican Americans into the category "white" was that it denied them equal protection as a group.	25
In response to this shift in the court's language, the attorneys for Mexican American appellants tried several tactics. They first bolstered the "Mexican race" thesis, supplementing it with arguments about nationality discrimination. But then they abandoned the thesis altogether by contending that they experienced discrimination despite being part of the white race. In 1946, two years after Sanchez, attorney M. C. Gonzalez, who had used the "Mexican race" argument in Lugo, replaced it with a Fourteenth Amendment claim based on nationality in Salazar v. Texas. The Texas Court of Criminal Appeals noted this shift and rejected it: "The complaint is made of discrimination against nationality, not race. The Mexican people are of the same race as the grand jurors. We see no question presented for our discussion under the Fourteenth Amendment."49 Perhaps in reaction to this decisive rebuff, the attorneys briefly and unsuccessfully returned to the "Mexican race" argument in Bustillos. In the next case, Sanchez v. Texas (1951), attorneys John Herrera and James DeAnda, who would later assist in the Hernandez case, pursued a dual strategy. They argued both that Mexican Americans were a race and that they were treated as a separate class.50 The Texas Court of Criminal Appeals stated angrily, "Appellant has filed quite an exhaustive brief on the subject in which he discusses decisions of other jurisdictions which, either intentionally or loosely, refer to Mexican people as a different race. They 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 this further."51 Rogers v. State, the last case before Hernandez, relied on the same arguments, which, again, were rejected. Finally, the attorneys for Hernandez formulated a new argument. They contended that Mexican Americans were members of the white race who were treated like "a class apart" and experienced discrimination in violation of the Fourteenth Amendment, which protected whites (including Mexicans), as well as blacks, from unequal treatment.	26
The Hernandez Case
Pete Hernandez was indicted in September 1951 for shooting Joe Espinosa.52 His lawyers filed a motion to quash the indictment, objecting to the selection of both the grand jury commissioners and the petit jury on the grounds that it violated the equal protection and due process clauses of the Fourteenth Amendment. No Mexican American had been on a jury in Jackson County for at least twenty-five years. In addition, there were none on the list of talesmen used in selecting the jury in this case, despite the fact that there were Mexican Americans who met all of the qualifications.53 The motion to grant a new trial was denied, as was the appeal to the Texas Court of Criminal Appeals. Carlos Cadena, Pete Hernandez's main lawyer, appealed to the U.S. Supreme Court.54	27
Cadena moved to quash Hernandez's indictment because "persons of his national origin" were "intentionally, arbitrarily and systematically" excluded from the jury selection process in Jackson County, thus denying him an impartial jury of his peers. Cadena's use of the phrase "national origin" is significant. The expressions used to refer to Mexican Americans by attorneys for the state of Texas on the one hand, and by Cadena on the other, were central to establishing the terms of citizenship for Mexican Americans. This dispute over terminology was more than a matter of linguistic interest. Rather, such conceptual struggles had material consequences. In common usage, words like "race," "nationality," and "ancestry" were used interchangeably, and "white" was understood to designate non-Mexican, non-black persons. Indeed, Mexican Americans' very existence as "in-between" black and white challenged the fixity of these concepts. In turn, the instability of the meaning of "white" left it open to challenge by Cadena. The Hernandez case hinged on clarification of these terms and the meanings they carried within the Fourteenth Amendment. Two key issues in the case centered around the definition of terms: whether Mexican Americans were whites, or were a separate race, and whether race and nationality could be construed similarly under the auspices of the Fourteenth Amendment.	28
Are Mexican Americans White?
Cadena's argument was complex. He first showed that in common usage people contrasted "Mexicans and whites," but not, for example, "Germans and whites." This suggested that Mexican Americans were considered a separate race and that it was their race, not their ancestry, that was the key to the distinction. He also provided evidence that the state and federal governments distinguished "Mexicans" as a separate category alongside "negroes" and "whites," and that Mexicans were segregated in schools, restaurants, and public swimming pools as a matter of practice, although not by law.55 His most dramatic piece of evidence was his personal observation that the courthouse in Jackson County, where the case was originally tried, had one bathroom for whites and one for "Colored Men" that was also labeled "Hombres Aqui" ("Men Here"). Cadena stated that Anglos referred to Mexican Americans as non-white, but he insisted that they were, in fact, white. It was only because of the way Mexican Americans were treated that they could be considered a distinct class. Anglos' mistaken perception of "Mexicans" as a race constructed a false distinction, but one that had real effects on Mexican Americans' rights. He noted, "People of his national origin or class are . . . considered members of a distinct race, separate and apart from the other citizens of Jackson County," implying that this was false. He blamed this on the U.S.-Mexico war, which had "aroused antagonisms" so that "'Mexican' became a term of opprobrium," and this "led to the establishment of a status for 'Mexican' like that assigned by the dominant group to the Negro."56	29
Cadena then entered the dispute over whether Mexicans were a "race," a "nationality," or both. This issue was particularly difficult because in prior decades "race" and "nationality" had been synonymous. But in the 1910s and 1920s, the equation of race and nationality was in flux. As Mae Ngai so cogently describes, nationality-based identities and racial identity decoupled for European immigrants so that they could be both ethnically German and racially white. But those immigrants we recognize today as non-whites experienced the racialization of their national origins.57 According to Haney López, this shift for Mexican Americans began as early as the 1840s and 1850s, at the time of the battle for Texas independence and the U.S.-Mexico war. Before this, he claims, persons of Mexican nationality in the U.S. could be identified as white, black, or Indian. The racialization of Mexicans deepened considerably in the early decades of the twentieth century, as the nation grappled with the wave of new immigrants. Once racialized as "Mexicans," their ethnic characteristics became reified and naturalized as immutable racial ones. In contrast, "Among whites, racial identity (whiteness) and ethnic identity are distinct . . . forms of consciousness."58	30
Cadena was fighting to decouple Mexican Americans' national ancestry from race in the hope of following in the footsteps of Germans and other "white ethnics." He preferred to use the term "national origin" (by which he meant ancestry) in contrast to "race," but argued that the two were equivalent for the purposes of the Fourteenth Amendment. In an appendix to his U.S. Supreme Court brief entitled "Status of Persons of Mexican Descent in Texas," he described "natio-racial distinctions" that were used by the state to differentiate people of Mexican descent from other whites. For example, the federal census bureau compiled statistics on "Spanish speaking persons," the category "Mexican" was used by the Selective Service in World War II, and the state of Texas also treated them as "a class apart" in studies by the Texas Department of Health. Since he did not want to admit that Anglos were correct in their categorization of Mexican Americans as non-white, he relied on the term "national origin" to explain the distinction. For example, he referred to "persons of Mexican descent" and "other white persons" in the same sentence, clearly distinguishing ancestry from race.59	31
Mexican Americans' racial "in-betweenness" prevented them from fully assimilating into whiteness. Instead, they paired their rejection of racial minority status with an embrace of the notion that they constituted another white race. This was a cornerstone of their civil rights strategy. In fighting to secure quality education for their children in Independent School District v. Salvatierra, Mexican American activists chose to use the argument that they were "another white race" and therefore could not legally be confined to a separate (and unequal) education as blacks were. This was the first case to use the phrase "other white race" in reference to people of Mexican descent.60 While the counsel for the plaintiffs introduced the term, the court adopted it, holding, "school authorities have no power to arbitrarily segregate Mexican children, assign them to separate schools, and exclude them from schools maintained for children of other white races, merely or solely because they are Mexicans."61 This case used "race" as a synonym for "nationality," grouping Mexicans with Czechs, Germans, and other "nationality groups" who were simultaneously recognized as white.	32
By adopting this language, Mexican Americans were able to distinguish themselves from less desirable groups (such as blacks, Indians, and Chinese) in order to claim inclusion and equality as white American citizens. In 1931 Paul Taylor, a Berkeley social scientist, concluded that although Mexican Americans initially befriended blacks in Texas, they "have been moved toward 'Americanization' through their desire to protect, and also recently, to enhance, their own social position. In order to prove their American allegiance, Mexican-Americans proclaim upon occasion not only their patriotic military service, but their adoption of the race attitudes of the local white community, in so far as they apply to the black race beneath them."62	33
The "other white race" strategy implicitly acknowledged variations in skin color, while maintaining that racially and culturally Mexican Americans were white and assimilable. The strategy was an attempt to locate themselves on a racial spectrum that allowed for a broader definition of white, yet preserved and reinforced the black/white dichotomy. By doing so, Mexican Americans identified themselves as similar to other national origin groups among whites. They were acknowledging national origin or ethnic difference while claiming whiteness. It was their whiteness that made them assimilable. Their similarity to other whites outweighed any perceived cultural differences, especially when compared to the black antithesis. Mexican Americans used Anglos' attachment to the dichotomous definition of race as black or white to their advantage in making their claims to citizenship and American identity and to a more inclusive definition of whiteness.	34
Yet the argument that Mexican Americans were white was more than just a strategy used to gain easier access to the legal privileges and material benefits connected to whiteness. It was also psychologically important to them to distinguish themselves from blacks. As Roediger argues, immigrants whose racial status was "in-between" black and white gained a sense of higher status by distancing themselves from blacks. For example, in fighting against their classification as a separate race for the first (and last) time in the 1930 census, one advocate suggested that Mexican Americans could be categorized as "other White-Mexican," if necessary, but not as "colored" because this "naturally causes the most violent feelings."63	35
Mexican Americans rejected the use of the term "Mexican" to designate a race because it marked them as separate from and inferior to Anglos. In addition many objected to being grouped with blacks. This attitude transcended class lines. Taylor observed the irony of an Indian-looking "Mexican" cotton picker expressing a common sentiment about blacks: "Negroes and Mexicans do not mix. It does not look right to see Mexicans and Negroes together. Their color is different. They are black and we are white. It is all right for Americans and Mexicans to mix. We are both of the white race."64 Instead, Mexican Americans relied on their ambiguous position in the racial hierarchy--and Anglos' dichotomous treatment of race as either black or white--to self-identify as white. In fact, some Mexican Americans found the argument used in the Hernandez case controversial because it suggested that their civil status was analogous to blacks' and it implicitly placed them on the same social level as blacks. In a monograph celebrating the Hernandez victory, Cadena assured his audience, "It must be remembered that this decision is based strictly on a question of national origin--not race. Those of Mexican descent who decry it as classifying 'our people' as non-white should keep this in mind."65	36
Attorneys for the state of Texas agreed that Mexicans were white, but only to undermine Hernandez's claim of discrimination. They argued that Mexican Americans were white and lower courts concurred: "Mexicans are white people . . . so long as they are so treated, the guarantee of equal protection has been accorded to them."66 Lawyers for the state then reasoned that Hernandez had an impartial jury of his peers, composed of members of his race. That is, "Since . . . persons of Mexican descent were members of the white race, and since white Anglos sat on all juries, 'Mexicans' had no cause for complaint."67 The most common term state attorneys used in their brief to refer to "Mexicans" as a distinct group was "nationality." They conspicuously avoided the term "race" unless declaring that "Mexicans" were white. This enabled them to discuss "Mexicans" as a distinct group, while asserting that they were part of the white race. The choice of the term "nationality" was significant because it simultaneously insisted that "Mexicans" were not of another race and marked them as different from whites, whose nationality was presumed to be American and whose ancestry was irrelevant for legal purposes. Nationality displaced the language of race by obscuring its operation. It allowed the attorneys to include Mexican Americans by ignoring real differences in treatment and yet exclude them on the basis of their purported racial identity to whites. Haney López comments that the state attorneys' assertions of sameness "reify the essential racial difference ethnic language purports to deny."68 At other times, the attorneys modified their word choice and referred to Mexican Americans as being of "Mexican nationality." This not only served to distance Mexican Americans racially, but also threw into question their true citizenship status and their very inclusion in the American polity. This conflation of the alien with the citizen betrays the common wisdom that Mexicans Americans are forever foreigners, alien to American national identity. Cadena astutely noted this, complaining, "The use of the term 'nationality' by the Texas court is questionable usage. Petitioner does not contend that Mexican citizens have the right to sit on Texas juries. The use of the term 'Mexicans' is also incorrect from the point of view of citizenship."69 At one point, state attorneys corrected their usage and employed the awkward clause "of Latin American origin as per names." However, they exposed their common understanding of "Mexican" as a racial category when they commented that the use of surnames was insufficient evidence to indicate the exclusion of "persons of Mexican or Latin American blood" from jury service.70 That is, there may have been "Mexicans" (defined racially by "blood") who had "American" surnames. Here, they inadvertently revealed their adherence to the racializing notion that any amount of non-white "blood" marks individuals as part of the (supposedly) inferior race. Although often used metaphorically, the term "blood" is rooted in assumptions about unalterable biological heritage. In treating nationality as conceptually similar to race-as immutable and inherited--they showed that it was Mexican Americans' racial status, not their status as citizens or peers, that was at issue.	37
Although state attorneys insisted that Mexicans were "white people of Spanish descent," they often lapsed into treating Mexicans as a different race, while using the term "nationality." For example, their brief to the U.S. Supreme Court suggested that Hernandez could only make an equal protection claim if the victim were of a different "national origin." They argued that the record "shows both the murderer and the murdered to be of the Latin American origin as per names and that no denial of equal protection of law is shown by the record in this case, as might be otherwise vaguely inferred if the victim had been of some other national origin."71 This implies that the outcome was fair because the jury had no interest in punishing Hernandez based on prejudice. However, if the victim of the crime had been white, Hernandez would have had a more legitimate (though still "vague") claim of discrimination. Presumably, if there was no bias against Mexican Americans in the selection procedure, and Hernandez was tried by an impartial jury of his peers, there should be no distinctions based on any categories, and therefore no difference in outcome; his Fourteenth Amendment claim was aimed at securing equal application of the rules governing jury selection. The state's attorneys asked the Court to overlook the significance of race while simultaneously acknowledging its power and the possibility of discrimination. This demonstrates that for "Mexicans" the distinction between race and nationality had collapsed and that the state obscured this through the more neutral language of nationality. Clearly, "national origin" served as a proxy for "race" here.	38
Is "Nationality" Encompassed by the Fourteenth Amendment?
Having made a case that Mexicans were a nationality group within the white race, Cadena then tried to convince the court that nationality groups should be treated the same as racial groups under the aegis of the Fourteenth Amendment. His key argument was that failure to apply Norris's "rule of exclusion" to Mexican Americans violated the due process and equal protection clauses because it denied them a way of proving discrimination that was available to blacks. Instead, Texas courts had held Hernandez and all those of Mexican origin to the higher standard of proving that discrimination was committed expressly against them as individuals, requiring them to show intent to discriminate in each case. Cadena commented, "persons of Mexican descent must bear this onerous burden solely because they are not Negroes; i.e., because they are white."72 He then retreated from contrasting "Mexicans" and blacks and returned to contrasting whites (including Mexicans) and blacks. He asserted that the Fourteenth Amendment prohibits discrimination against both blacks and whites, and that as whites, Mexican Americans should be entitled to equal protection. Thus, while partially refuting the lower court's "two classes" theory by contending that Mexican Americans were treated as a distinct class that should be protected under the Fourteenth Amendment, he then redefined the category "white" to incorporate Mexican Americans and invoked the two class theory in defense of Hernandez. He noted, "it does not follow that the Amendment sanctions discrimination against white persons by rules of evidence which imposes (sic) upon them a burden more onerous than that which is placed on Negroes."73 In Cadena's view, the category "white" was not as undifferentiated as the state of Texas assumed. He did not, however, challenge the fixity of the category "black." Furthermore, he argued that the lower courts misinterpreted the meaning of the amendment when they denied that it applied to nationality or other groups refused representation on juries. In fact, in Strauder v. West Virginia, the U.S. Supreme Court noted that the amendment was applicable to classes based on characteristics other than race or color, although it had not yet ruled on nationality groups.74	39
The Supreme Court agreed with Cadena that exclusion on the basis of distinctions other than race can deprive a group of equal protection. It rejected the state court's two classes theory because community prejudices change and new groups may need protection. The decision, written by Chief Justice Warren, found that: "When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated."75 The justices also accepted the proof Cadena offered that people of Mexican descent were treated as a distinct class. Once this was established, they recognized a pattern of de facto discrimination similar to that in Norris, even though, unlike Norris, the rules governing jury selection were ostensibly neutral. They rejected the state attorneys' claim that the jury commissioners merely chose those best qualified for jury service. The justices wrote, "It taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years."76 They also rejected the state attorneys' claim that allowing national origin claims of discrimination would lead to claims for proportional representation of groups on juries. They noted that Hernandez's lawyers did not make this argument and that "his only claim is the right to be indicted and tried by juries from which all members of his class are not systematically excluded."77	40
The Supreme Court, however, declined to rule on whether Mexican Americans constituted a race. It is significant that the Court consistently used the term "class" (meaning "category"), rather than "race," to refer to Mexican Americans. While the case has been interpreted to extend the equal protection clause to national origin groups, the Court did not define people of Mexican descent as such. It merely stated that in Jackson County, Texas, Mexican Americans were treated as "a separate class" and that the equal protection clause could cover groups that have "other differences from the community norm" when those differences lead to discriminatory treatment of the class. Pointedly, the Court did not define what constituted a nationality group. In allowing Mexican Americans to remain "in-between" racial categories, it perpetuated the Gordian knot of being Mexican American: legally white, yet treated as non-white and subject to the disabilities connected with this status, they were not guaranteed recourse to the laws protecting racial minorities.	41
Citizenship and Racial Identity
The Supreme Court's silence is not surprising. The law as a whole was curiously silent or ambiguous regarding Mexican Americans' position in the racial order.78 Informal social rules often accomplished the same end as formal, legal prohibitions. Segregation of Mexican ancestry children, for example, was a common practice through the 1940s, despite the fact that Texas law ordered segregation only of "colored" children, defined as anyone descended from a Negro.79 But unlike blacks and some Asian groups, people of Mexican descent were placed in the position of not being assigned a definitive legal racial identity; they were classified as white by census officials, yet identified as a distinct population alongside other racial categories by state and federal agencies. Other "in-between peoples" (such as Armenians and Asian Indians) who challenged their denial of naturalization in the courts were ruled to be non-white.80 Yet the legal classification of Mexicans, Italians, and other southern and eastern European immigrants as white was accompanied by the tacit recognition that many, in fact, were not white, according to common wisdom. Mexican Americans did not easily fit within the dichotomous racial categories that established and maintained whiteness. Recognizing or naming their difference as something other than white or black would undermine the inflexible discipline of a segregated world. "In-between peoples" destabilized the concept of racial purity that justified Jim Crow and threatened its social order. Since they clearly were not black or belonging to a race proscribed by law, Mexican Americans became white by default. The lower courts declared them juridically white, ignoring the consequences of perceived racial difference and local discriminatory treatment. While the Supreme Court acknowledged their experience of discrimination, it accepted this erasure of race, substituting a more nebulous and transitory notion of difference. Thus, the rigidity of "race" was at times advantageous and at times a serious disability to Mexican Americans' citizenship claims. While "Mexican" was not mentioned as a racial category by laws such as antimiscegenation statutes, neither was it recognized as a category encompassing a group of people in need of protection.81	42
As a group "Mexicans" are problematic for theories of race, and particularly for whiteness, because they demonstrate that race is not solely about skin color. Rather, whiteness signifies a complex of social meanings and statuses.82 It can include class, social power (determined by factors such as ancestry, education, and community influence), and even religion and gender. Whiteness does not carry a stable set of meanings, but always refers to social status relative to other groups. Mexican Americans, for example, could assert some of the privileges of whiteness because they were not black. Thus, it is not curious that Cadena would claim, "While legally white (anthropologically he is predominantly Indian) frequently the term 'white' excludes the 'Mexican' and is reserved for the rest of the non-Negro population."83 Here whiteness functions on at least four levels: legal recognition, scientific racial classification, social status, and racial "common knowledge" defined in a relational context. The latter two categories of racial classification are informal ones, based on how people apprehend their changing social world. For example, Cadeña recognizes that "Mexicans" are excluded from the category "white" and are not acknowledged as being social equals with Anglos. Further, "Mexican" is defined in comparison to what it is not: neither white, nor black. (He does not mention Asians because they did not play a large role in the social structuring of his world.) Because race is relationally constructed, its meaning and very contours change according to the context in which it is situated. The unsuccessful effort to classify "Mexicans" as a race provides a compelling argument for "an understanding of races, not as absolute categories, but as comparative taxonomies of relative difference. Races do not exist as abstract categories, but only as amalgamations of people standing in complex relationships with each other."84	43
The one court case besides Hernandez that addressed Mexicans' racial classification also avoided categorizing them racially, even though determining their race was precisely the question before the court. In In re Rodriguez, the court grappled with the question of whether Ricardo Rodriguez, a citizen of Mexico who was "Indian" in appearance, was eligible to be naturalized, given that statute provided only for the naturalization of free whites and Africans. The 1848 Treaty of Guadalupe Hidalgo, however, contained provisions that guaranteed the automatic conferral of citizenship on the residents of the ceded territory unless they affirmatively chose to remain Mexican citizens by declaring themselves thus or removing themselves from the U.S. within one year.85 It thus provided for mass naturalization of former Mexican nationals regardless of their perceived race, in spite of the naturalization statute. Did this set a precedent for the naturalization of Mexican citizens? Several briefs were solicited by the court, offering various interpretations of the racial import of the law. One brief by Floyd McGown argued that most Mexicans racially were Indians, and since Indians were not eligible for naturalization, neither were Mexicans. Further, Congress inserted the word "white" in the statute to exclude all but Caucasians, and common usage of "white" would exclude Mexicans.86 Another brief by A. J. Evans reasoned similarly, but also offered the theory that Indians originated in Asia, traveling to America over a chain of islands, and that therefore Mexicans were of the Mongolian race, and like the Chinese, were ineligible for naturalization.87 A third brief by T. J. McMinn also argued that Mexicans were Indians and therefore ineligible, but offered a stronger condemnation of their ability to be citizens. It claimed that the Texas revolution "was fought to get rid of the 'Mexican people,' who, in the declaration of independence, were declared to be 'unfit to be free, and incapable of self-government.'"88	44
A fourth, more complex, brief by T. M. Paschal addressed the argument that prior cases (In re Ah Yup, on Chinese exclusion, and In re Camille, on the exclusion of a half-Indian, half-white man from Canada) were not parallel to the Rodriguez case and were poorly decided. He then offered a reading of Elk v. Wilkins, arguing that Elk, an American Indian, was denied naturalization not because of his race, but because the state, within its sovereign rights and in accordance with a treaty, had not agreed to accept him as a citizen, despite his severance of relations with his tribe. Paschal then asked if American Indians could, in theory, be naturalized, why couldn't Mexican Indians? Finally, he showed that collective naturalization through treaty or conquest was not uncommon historically, and had incorporated large numbers of non-whites and non-blacks.89	45
A fourth, more complex, brief by T. M. Paschal addressed the argument that prior cases (In re Ah Yup, on Chinese exclusion, and In re Camille, on the exclusion of a half-Indian, half-white man from Canada) were not parallel to the Rodriguez case and were poorly decided. He then offered a reading of Elk v. Wilkins, arguing that Elk, an American Indian, was denied naturalization not because of his race, but because the state, within its sovereign rights and in accordance with a treaty, had not agreed to accept him as a citizen, despite his severance of relations with his tribe. Paschal then asked if American Indians could, in theory, be naturalized, why couldn't Mexican Indians? Finally, he showed that collective naturalization through treaty or conquest was not uncommon historically, and had incorporated large numbers of non-whites and non-blacks.89	46
District Judge T. S. Maxey based his decision on the prior practices of the nation, rather than by settling the race question. He stated:	47
It is not deemed material to inquire to what race ethnological writers would assign the present applicant. If the strict scientific classification of the anthropologist should be adopted, he would probably not be classed as white. It is certain he is not an African, nor a person of African descent. According to his own statement, he is a "pure-blooded Mexican," bearing no relation to the Aztecs or original races of Mexico. Being, then, a citizen of Mexico, may he be naturalized pursuant to the laws of congress?90
Maxey rejected prior cases as too dissimilar to Rodriguez's situation. He noted that not only had Mexicans been incorporated by treaty through collective naturalization and through the admission of western states and territories to the U.S., but that anyone of Mexican descent born in the U.S. enjoyed birthright citizenship despite his racial classification. In addition to collective naturalization, the U.S. had admitted the possibility of individual naturalization of Mexicans by treaty between 1868 and 1882. He concluded, "When all the foregoing laws, treaties, and constitutional provisions are considered, which either affirmatively confer the rights of citizenship upon Mexicans, or tacitly recognize in them the right of individual naturalization, the conclusion forces itself upon the mind that citizens of Mexico are eligible to American citizenship." Further, "whatever may be the status of the applicant viewed solely from the standpoint of the ethnologist, he is embraced within the spirit and intent of our laws upon naturalization."91
Public consensus held that Mexican Americans were a "mixed race," regardless of their legal classification as white, but there was no consensus about what this should mean for their status as citizens. Could they responsibly participate in the democratic process? Should they be accorded the same status as whites? Or, like blacks and women, should their participation as citizens be curtailed? Their mode of incorporation--the consequence of conquest--marked their citizenship as illegitimate and cast doubt on their ability to participate in the democratic process as republican citizens.92	48
Mexican Americans' ambiguous status in the nation's racial and social orders shaped their strategies to gain full inclusion in the polity. Usually they could argue that, as white people, they were being unfairly excluded from schooling, housing, or public facilities. The Hernandez case posed a different dilemma. Because their exclusion in Hernandez was based on the "fact" of their whiteness, they had to admit that they were treated like an inferior racial group in order to claim the protection of the Fourteenth Amendment. Yet they did not want to admit to being the same as blacks. In an era of formally sanctioned segregation, this was far too risky.93	49
In addition, many Mexican Americans did not believe that people of Mexican ancestry were non-white. For example, Gus Garcia, one of Hernandez's lawyers, was convinced that Anglo ignorance was the only obstacle to overcome before Mexican Americans achieved social and political equality.94 Because he viewed himself as a member of an "ethnic group" that was part of the white race, he confidently predicted, "We are not passing through anything different from that endured at one time or another by other unassimilated population groups. . . . The point to remember is this: all these other ethnic and religious groups have managed to overcome the same obstacles now besetting our path. . . ."95 His choice of comparison to "ethnic and religious groups," rather than to racial ones, reveals his belief in the whiteness and assimilability of Mexican Americans. He clearly believed in the promise of the melting pot.96	50
In an astute commentary on the assimilation of white ethnic groups in America, Roediger argues that Americanization involved not just acceptance as Americans, but acceptance as whites.97 This usually was accomplished by allying one's group with whites against another group characterized as non-white and threatening to white privilege. Like other ethnic groups, Mexican Americans sought to be accepted and were willing to enter this "Faustian pact with whiteness."98 For example, LULAC's mission was to achieve this model of ethnic assimilation. Its main activities were Americanization programs and educating Mexican Americans to be conscientious citizens, but it also supported restrictions on immigration.99 It even expelled one member for marrying a black woman.100 LULAC members also attempted to distinguish themselves from lower class Mexican immigrants. It can be argued that the distinction between "American" and "white" disintegrates. If one is white, one is American, as whiteness is the norm. White identity first defines American identity and then is, itself, obscured. Hale summarizes, "This erasure (of whiteness) enables many to fuse their absence of racial being with the nation, making whiteness their unspoken but deepest sense of what it means to be an American."101 Thus, LULAC members' campaign to be recognized as Americans was unlikely to be successful because one first must be recognized as white.	51
Citizenship as Social Standing
The fear that claiming discrimination meant ceding whiteness was partially rooted in Mexican Americans' anxiety that their social status would be diminished. Political theorist Judith Shklar argues that the desire for equal citizenship is rooted less in a desire to participate in civic activities and more in a yearning for inclusion and recognition, or "social standing." She comments, "exclusion from public life is a denial of . . . civic personality and social dignity."102 Her thesis that social standing is an integral element of citizenship is convincing. In Hernandez, the Texas court manipulated this combination of anxiety and desire and simultaneously raised the specter of reverse discrimination, with whites as the victims of unequal treatment. It commented:	52
We said in Sanchez v. State, 243 S.W. 2d 700, that "Mexican people are not a separate race but are white people of Spanish descent. . . ." In so far as we are advised, no member of the Mexican nationality challenges that statement. Appellant does not here do so. It is apparent, therefore, that appellant seeks to have this court recognize and classify Mexicans as a special class within the white race and to recognize that special class as entitled to special privileges in the organization of grand and petit juries in this state. To so hold would constitute a violation of equal protection, because it would be extending to members of a class special privileges not accorded to all others of that class similarly situated.103
The court knew it would be anathema to Mexican Americans to claim that they were not white because of the social stigma and civic disabilities attached to this status. It employed Mexican Americans' reluctance to distance themselves from whiteness to argue that they were asking for special privileges.
Mexican Americans did not wish to challenge their status as whites because they recognized the value that inheres in those possessing whiteness.104 Cadena faced a dilemma: if he claimed racial discrimination, he would be ceding his claim to whiteness, thus providing Anglos with a rationale to treat Mexican Americans as inferior. In an era of segregation, the consequences of this threat were too real and too high. The value of whiteness, after all, resides in its exclusivity. The state court understood the implications for Mexican Americans of abandoning their claim to whiteness. Thus it was able to use this vulnerability to protect the privilege of "true" whites in the legal arena by including Mexican Americans as white. Including them as white did not upset the mea