FORUM: WHITNESS AND OTHERS: MEXICAN AMERICANS AND AMERICAN LAW

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	1
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	2
The Divide between African and Mexican American Litigation
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	3
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	4
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	5
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	6
James DeAnda and the Traditional Approach
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	7
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	8
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.	9
Early Legal Status of Mexican Americans
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	10
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	11
Establishing "Whiteness"
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	12
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	13
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	14
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	15
LULAC and the First Mexican American Suits against Segregation
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	16
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	17
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	18
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	19
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	20
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	21
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	22
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	23
Language Segregation, Language Testing
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	24
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	25
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	26
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	27
First Steps against Jury Discrimination
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	28
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	29
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	30
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	31
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	32
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	33
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	34
The Limitations of "Other White" Litigation
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	35
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	36
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	37
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	38
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	39
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	40
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	41
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.	42
[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
"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
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	43
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	44
Maintaining "White" Status
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	45
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	46
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	47
The Turn toward Politics, the Growth of Militancy
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	48
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	49
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	50
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	51
Becoming an "Official" Minority
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	52
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	53
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 U