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]
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]
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]
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]
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]
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]
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]
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]
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.
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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.
[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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
READ MORE: Chicano Movement
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]
HEW examiners began to accumulate evidence of discrimination against Mexican Americans only after Hector Garcia, in his new role as a member of the U.S. Civil Rights Commission, rebuked OCR for failing to answer Mexican Americans’ complaints. In 1967, HEW began publishing data on black, white, and “other” groups. The last category included “any racial or national origin group for which separate schools have in the past been maintained or which are recognized as significant ‘minority groups’ in the community.” Other examples HEW gave included: “Indian American, Oriental, Eskimo, Mexican American, Puerto Rican, Latin, Cuban, etc.” Later, HEW published separate statistics on “Spanish Surnamed Americans” and issued a series of “Mexican-American Studies.”[105] Yet, despite the emergence around the same time of a new militant attitude, this shift from official “other white” status to “other minority” confused some Mexican Americans of both the younger and the older generations. One student at Texas A&I University, which later emerged as a hotbed of Chicano activism, wrote a column in the October 1967 issue of the liberal magazine Texas Observer. He complained about the Washington bureau-cracy’s misguided attempt, or perhaps it was a clever ploy, to make “the second largest minority group in the country non-White.”[106]
A Legal Defense Fund for Mexican Americans
Mexican American civil rights lawyers had remained comparatively quiet during the 1960s because lawsuits, even against tiny rural school districts like Driscoll and Odem, were costly. The limited benefits that more “due process” victories might bring to the Mexican American community did not justify the expense.[107] In October 1967, a few months after winning in the Odem case, DeAnda described the financial limitations for litigation, during the hearings in El Paso of the newly established Inter-Agency Committee on Mexican American Affairs. DeAnda testified that the lack of resources prevented the large-scale litigation necessary to fight the segregation of Mexican Americans. He also proposed remedies. First, he noted that the 1964 CRA provided for the judicial award of plaintiffs’ attorneys’ fees in certain employment discrimination cases. A similar compensation scheme, he argued, would be appropriate in voting, jury, and school discrimination suits.[108] Second, DeAnda challenged the U.S. Department of Justice to fight the discrimination against Mexican Americans.[109]
The year 1967 saw a turning point in litigation strategy, unrelated to De-Anda’s efforts, when San Antonio attorney Pete Tijerina obtained a $ 2.2 million, multi-year grant from the Ford Foundation. Tijerina used it to found the Mexican American Legal Defense and Education Fund (MALDEF), which he consciously modeled on the NAACP’s LDF.[110] When the U.S. Civil Rights Commission held hearings in San Antonio in December 1968, Commissioner Garcia invited Tijerina to describe why he had organized MALDEF. Tijerina said that his experience in defending Mexican American criminal defendants before all-Anglo juries–and this a decade after the U.S. Supreme Court condemned discriminations in jury selection–had convinced him that a legal defense organization was needed. Tijerina also decried the great expense of private litigation and called on the U.S. government to fight discrimination against Mexican Americans. He assured the commissioners, however, that he sought only to broaden the scope of federal efforts, not to compete with black civil rights efforts.[111] As contrasted with recently increased federal support of African Americans, Tijerina noted, the government had never intervened in a civil rights lawsuit involving Mexican Americans or filed an amicus brief to support them.[112]
Tijerina did not wait for assistance from Washington.[113] Instead, as amicus curiae, MALDEF legal expertise and funds ultimately supported a suit filed by DeAnda that finally confronted and overcame the “other white” legacy. The shift required the lawyers to recognize that most of the Mexican American segregation in Texas was not the result of illegitimate testing in schools, but long-term residential patterns. Under the judicially approved “freedom-of-choice” plans for desegregation, Mexican American parents could not transfer their children into Anglo-majority schools–since, according to existing interpretations of laws, all Mexican American students were already enrolled in “white” schools.[114] Before Mexican American civil rights advocates could attack the segregation created by “neighborhood” schools, under the constraints of “freedom of choice,” they had to overcome Mexican Americans’ equivocal minority status. DeAnda finally led the retreat from the strategic ground that he had helped conquer during the 1950s. In a path-breaking suit against the large urban Corpus Christi Independent School District (CCISD) he formally contended that the Brown rationale should apply to–and condemn as a clear denial of equal protection–the widespread segregation of Mexican Americans.[115]
Accepting the Brown Rationale
Corpus Christi steelworker Jose Cisneros’s children attended such Mexican American-majority schools and they complained to him regarding the dilapidated and dirty conditions of their schools. Cisneros tried to persuade CCISD administrators to repair and improve facilities. He met repeatedly with teachers, principals, and school board members over two years, but saw no changes. Moreover, during his investigations, Cisneros discovered inequities in the curriculum and resources available to his children as compared to the courses and programs offered to students in the Anglo-majority schools. Cisneros informed other parents and community leaders of his findings. At the urging of Civil Rights Commissioner Garcia, who still lived in Corpus Christi, HEW studied conditions at CCISD for a year, beginning in September 1967. They found that eighty-three percent of the Mexican American and African American children attended schools that were identifiable as minority-majority schools.[116]
The CCISD board refused to institute the HEW’s suggested improvements or to heed the parents’ complaints. Cisneros was a member of the U.S. Steel Workers Union, and he turned to the leadership of the local 5022 in Corpus Christi. The local convinced the national union to pay for a lawsuit against the CCISD for maintaining a dual school system.[117] It apparently was the first, and perhaps the only, public school desegregation lawsuit to be financed by a labor union.[118] Cisneros and more than two dozen fellow unionists, African Americans as well as Mexican Americans, retained DeAnda who, in late 1968 formally initiated the litigation by paying the $15 filing fee.[119] Several co-counselors helped DeAnda gather documentary evidence, depose witnesses, and develop his new strategy.[120]
Although he hedged his bets by referring occasionally to the “other white” strategy, DeAnda focused his CCISD complaint on the novel contention that the Brown rationale should apply to, and condemn, segregation of Mexican Americans.[121] He marshaled evidence from history, sociology, and demography to demonstrate that despite being “white,” Mexican American Texans suffered widespread discrimination at the hands of Anglo Texans. The court hearings commenced in mid-May 1970. A significant portion of the plaintiffs’ evidence came from the CCISD’s records. DeAn-da described the percentages of each of the three major ethnic groups (Anglo American, Mexican American, and African American) that made up the district’s student population and revealed the number, ethnic heritage, and assignment of each teacher in each school. DeAnda illustrated the location of the past and present attendance boundaries, the location, date of construction, and cost of newer schools and of renovating older schools. Finally, he described the school children that the CCISD had bused “in the past and in the present, and who they were, and who they are.”[122]
Throughout, DeAnda sought to draw a picture of the CCISD as a “dual” school system that segregated its Anglos on a few campuses and placed non-Anglos, blacks, and Mexican Americans on the others. He offered the following breakdown for the 1969-1970 school year: 43 percent of the elementary students enrolled in CCISD schools were Anglo, 51 percent were Mexican American; in the junior high schools, 48 percent of the students were Anglo, 47 percent were Mexican American; and, in the senior high schools, 56 percent of the students were Anglo, 39 percent were Mexican American. Furthermore, fifteen percent of the total high school enrollment of 9,800 students, 1,300 Mexican Americans and 200 African Americans, attended schools with greater than 90 percent non-Anglo enrollment. And another 16 percent, 1,600 Mexican Americans but fewer than thirty blacks, attended schools with a 70 to 80 percent non-Anglo student body. Thirty-two percent of the Anglo students attended high schools with a 20 to 30 percent non-Anglo population (with fewer than 1,000 Mexican Americans enrolled on those campuses). Twenty percent of the Anglo high school population attended schools with a less than 10 percent non-Anglo enrollment.[123] DeAnda argued that if the CCISD were integrated, then the percentage of each ethnic group in each school at each grade level would approximate each group’s percentage of the total student population. Instead, the enrollment figures showed a substantial ethnic imbalance.[124]
DeAnda made a simple but compelling case with these numbers. In the CCISD, Mexican Americans were lumped with African Americans minority much more often than they were paired with the Anglo majority. But De-Anda had to prove that this statistical “imbalance” reflected the Mexican Americans’ minority status within an Anglo-dominated, segregated system. To that end, he called Thomas P. Carter, a professor of education and sociology at the University of Texas at El Paso, to testify. Carter began by stating that blatant discrimination against the Mexican Americans, such as the formerly common signs that proclaimed “Mexicans and Dogs Not Allowed . . . ,” were “rapidly disappearing” from Texas, but “[w]e are moving into a period of very subtle kinds of discrimination.”[125] Seals asked Carter whether, in the context of the issues raised in the present lawsuit, Mexican Americans should be considered “an identifiable group.” Carter answered that he “[found] that a very peculiar question,” because the federal census bureau, and the state of Texas, regarded them as a distinct minority. Moreover, Carter declared:
[E]veryone considers [them] an ethic minority or a cultural minority. In social science, a minority is a group of people who may be a physical majority, but . . . [also] a group of people who are not full participants in the dominant society. In other words, there is discrimination. They don’t fill their proportional number of doctors, lawyer, merchant, and chief kind of slot in the society. . . . [P]articularly in Texas, it has been established that many laws were discriminatory against Mexican-Americans. So both from a legal point of view, a Government point of view, and a social-science point of view, they are a minority.[126] [126]
“So,” Carter concluded, “no matter how you cut it, [they] are going to come out as a minority . . . from social science and from the legal . . . from the cultural . . . and the racial point of view.”[127]
DeAnda needed to connect the enrollment imbalances at CCISD schools to the widespread discrimination against Mexican Americans. He introduced into evidence a map of the locations of various Corpus Christi residential subdivisions that originally featured deed restrictions limiting the right of lot ownership to members of the “white” race. The restricted neighborhoods were clustered along the southern and northern rims of the city. DeAnda demonstrated statistically that very few Mexican Americans lived in the white enclaves. The location of the deed-restricted areas around the edges of downtown left an unrestricted zone in the center where very few Anglos lived, an area that DeAnda referred to as the “corridor.”[128] [128] In the sharply defined Corpus Christi residential segregation, neighborhood schooling plans would impede integration. DeAnda suggested that the perpetual segregation of Anglo American, African American, and Mexican American students was such an obvious effect of the neighborhood schools concept, that it might have been instituted expressly to defeat efforts to integrate the schools.
This was the crux of DeAnda’s case. When the CCISD board drew attendance zones to match well-known segregated residential patterns, its members acted in their official capacity to perpetuate discrimination against the minority groups. Therefore, DeAnda submitted, they had transmuted de facto segregation into de jure segregation. Since the Supreme Court had condemned de jure discrimination, Judge Seals had the authority and the duty to apply the equal protection rationale of the Brown decision to Mexican Americans.[129] Over the course of five days, DeAnda went to great lengths to prove that Mexican Americans were a de jure minority who deserved, but were denied, equal protection of the laws. But, at the last moment, he resorted to the lawyer’s ancient practice of arguing in the alternative. DeAnda reminded the judge of the Odem and Driscoll cases, that is, his “other white” due process victories. Seals took judicial notice of them, and so DeAnda rested his case.[130]
Confronted with an argument that had converged with African American arguments, the CCISD’s legal team fell back on strategies that many southern districts had used to foil black lawyers. The district’s lead attorney, Richard Hall, did not dispute the statistics DeAnda had offered. He could not argue against the evidence of the unbalanced CCISD enrollments or debate the effects of the “corridor” on the residential patterns in Corpus Christi. Instead, Hall attempted to convince the judge that there were different interpretations, implications, and conclusions to be drawn from the facts and that the benefits of neighborhood schooling outweighed the benefits of integration alleged by Carter. Hall called Lawrence D. Haskew, a professor of education and administration at U. T. Austin, to testify. Haskew stated that neighborhood schools could eliminate ethnic and racial barriers even when residential segregation caused children to attend segregated schools. The quality of education, not the place where it was offered, was the important consideration. If the education in segregated neighbor-hood schools gave the students social mobility, motivated students would be able to escape from their disadvantaged environment. Little benefit resulted from transporting students from one area of the city to another, simply to place them in an integrated environment for a mere eight hours each day. Rather than busing students, Haskew declared “education conducted for people in ghettos is the best route.”[131] [131]
The Decision against the Corpus Christi School Board
Seals quickly prepared and delivered his decision. He foreshadowed its content by announcing that he had concluded that Cisneros and his fellow steel workers had properly filed their case as a class action.[132] Although Congress recently had relaxed requirements for filing class actions, by amending the Federal Rules of Civil Procedure in 1966, this was a significant victory for the Mexican American and black plaintiffs.[133] Even under liberalized procedural rules, the Supreme Court regarded some labels to be inadequate for class actions. In 1969, for example, in a case from New Mexico, the Court had rejected as overbroad a proposed plaintiffs’ class consisting of “Indo-Hispanos, also called Mexican-American and Spanish-American.”[134]
Seals then proceeded to examine what he called the “ultimate issues” of the case. He had reduced them to five questions. First, the judge asked, could Brown and its progeny cases be applied to Mexican Americans, or, was Brown to be limited to African Americans? Second, if Brown could be applied to Mexican Americans in principle, did Brown apply to the specific facts in the present lawsuit against the CCISD’s alleged dual school system? Third, with regard to the African American students, was the CCISD a dual or unitary school district? Fourth, if the CCISD did maintain a dual school system, as defined by the Fifth Circuit cases, was it a de jure or a de facto segregated system? Finally, Seals asked, if the CCISD was a dual system, how should he, sitting as a judge in equity, remedy the situation? That is, “under what plans and programs” could he “disestablish a dual school system and establish and maintain a unitary school system?”[135]
On the question of whether Brown could be applied to Mexican Americans, Seals observed that Brown condemned segregation, “even though the physical facilities and other tangible factors may be equal,” because it deprived all children of the guarantees of the Fourteenth Amendment. The Brown cases had been specifically concerned with the segregation of blacks and whites, but “it is clear . . . that these cases are not limited to race and color alone.”[136] Judge Seals rejected outright as “patently unsound” any interpretation of the Brown decision, or of the Fourteenth Amendment’s equal protection clause, that claimed that “[a]ny other group which is similarly or perhaps equally, disadvantaged politically and economically, and which has been substantially segregated in public schools,” should receive less effective constitutional protection than African Americans.[137]
Judge Seals therefore declared that for the purposes of desegregating the public schools in Corpus Christi, Mexican Americans formed an identifiable ethnic minority that deserved but had been denied equal protection of the laws.[138] He accepted that the evidence indicated that, in the CCISD, “no less protection should be fashioned for the district’s Mexican-Americans than for its Negroes,” because Mexican Americans “[had] experienced deprivations and discriminations similar to those suffered” by the blacks in the district.[139] The “proof shows,” he declared, that Mexican American students in the CCISD “have been segregated and discriminated against in the schools in the manner that Brown prohibits,” and that because of that segregation and discrimination, they were “certainly entitled to all the protection announced in Brown.”[140]
Although the judge had fully accepted the plaintiffs’ claims that the Mexican Americans were a minority worthy of Fourteenth Amendment protection, he realized that this was a novel contention. Seals therefore took great pains to argue against the conventional wisdom that they were “white.” Nonetheless, he demonstrated that he was also still grappling with the notion. “It is clear to this court,” Seals announced in a rambling judicial aside, that:
Mexican-Americans, or Americans with Spanish surnames, or whatever they are called, or whatever they would like to be called, Latin-Americans, or several other new names of identification–and parenthetically the court will take notice that this naming . . . phenomena is similar to that experienced in the Negro groups: black, Negro, colored, and now black again, with an occasional insulting epithet that is used less and less by white people in the South, fortunately. Occasionally you hear the word “Mexican” still spoken in a derogatory way in the Southwest–it is clear to this court that these people for whom we have used the word Mexican-Americans to describe their class, group, or segment of our population, are an identifiable ethnic minority in the United States, and especially so in the Southwest, in Texas and in Corpus Christi.[141] [141] [141]
In addition, he said that he had taken judicial notice of “congressional enactments, governmental studies and commissions,” and court opinions that seemed either explicitly or implicitly to accept that Mexican Americans endured discrimination.[142] [142]
Seals found that “the objective manifestations” of ethnic discrimination were “gradually disappearing from our society.” Nevertheless, he declared, the “historical pattern of discrimination has contributed to the present substantial segregation of Mexican-Americans in our schools.” The result was a segregated dual school system. Then the judge announced that he had concluded that the African American students in the CCISD were “also segregated to a degree prohibited by law which causes this to be a dual rather than a unitary school system.” Moreover, “based primarily upon the undisputed statistical evidence,” Seals ruled that the segregated conditions also were manifested in the CCISD faculty assignments.[143]
On the question of whether CCISD segregation was de facto or de jure, Seals decided that the evidence was mixed. He noted that “some of the segregation was of a de facto nature,” the result of social and economic factors in Corpus Christi that caused the city’s blacks and Mexican Americans to continue to live in the “corridor.” But the judge also declared that the segregated dual district in Corpus Christi had “its real roots in the minds of men; that is, the failure of the school system to anticipate and correct the imbalancing that was developing. . . .” And it was obvious, he said, that “placing
Negroes and Mexican-Americans in the same school does not achieve a unitary system as contemplated by the law.” The unitary district could only be achieved “by substantial integration of the Negroes and Mexican-Americans with the remaining student population of the district.”[144]
Seals believed, in sum, that through a host of administrative decisions, the CCISD board had created and perpetuated a dual system. Among the board’s faulty decisions were “drawing boundaries, locating new schools, building new schools[,] and renovating old schools” in the predominantly black and Mexican Americans parts of town. The CCISD board also provided “elastic and flexible subjective” transfer rules that allowed some Anglo children to avoid schools in the “ghetto, or ‘corridor,'” but had not allowed the Mexican American or black students to transfer into the Anglo schools. He declared that “regardless of all explanations and regardless of expressions of good intentions,” these were official decisions that were “calculated to, and did, maintain and promote a dual school system.”[145] Therefore, he ruled that “as a matter of fact and law,” the CCISD was “a de jure segregated school system . . . wholly so with respect to the district’s Mexican Americans and predominantly so with respect to the district’s Negroes.” Moreover, Seals ruled,
[T]he de jure nature of the existing patterns of segregation within [CCISD] has as its base state action of a non-statutory variety, that is, the school board’s active pursuit of policies that not only do nothing to counteract the effects of the existing patterns of residential segregation in view of viable alternatives of significant integrative value, but, in fact, increase and exacerbate the district’s racial and ethnic imbalance. There has been a history of official school board acts which have had such a segregative effect.[146]
In light of this history of “official school board acts,” Seals ruled in favor of the plaintiffs and announced that he would grant them injunctive relief against the CCISD’s dual school system.[147]
Yet Judge Seals’s rulings on the question of Mexican Americans’ status within a multi-ethnic setting did not herald the end of the school desegregation controversy. The next battle in Texas came in Houston, where the federal district judge who had for fifteen years overseen the desegregation cases strongly resisted an innovation that would upset his carefully balanced–although basically failed–desegregation plans. The Fifth Circuit delayed hearing an appeal but ultimately upheld the substance of Seals’s novel declarations regarding the minority status of Mexican Americans in Texas. In 1973, the Supreme Court chose not to review Cisneros. Instead, the justices took up equivalent questions in a case originally filed in Denver, Colorado. The Court declared in the Denver case that, despite the variations of local customs and statutes, African Americans and Mexican Americans could in some cases suffer “identical discrimination.” They ought therefore to have access to the same remedies.[148] [148]
This victory did not mean that either group could expect a quick end to discrimination; instead, the judicial rulings meant only that Mexican Americans would formally join African Americans in their frustrating wait for a resolution of the issue. More lawsuits, marches, and compromises followed before federal trial and appellate judges could devise a workable “tri-ethnic” remedy that promised to integrate the white, black, and brown student bodies. The search for remedies in Texas took place in and out of court and would consume another decade.[149]
The Legacy of Brown and the Pragmatism of the Lawyers
James Patterson reminds readers of his recent reexamination of Brown v. Board of Education that, from the moment that Chief Justice Warren read the unanimous ruling, many contested its legitimacy. But early criticism contributed less to the case’s “troubled legacy,” as Patterson describes it, than the fact that, fifty years after Brown, scholars continued to debate not only the legitimacy, but the social, political, educational, and legal meaning of this controversial “milestone.”[150] Legal scholar Derrick Bell was more convinced of the decision’s basic meaning. In his estimation Brown “triggered a revolution in civil rights law,” because it increased African American plaintiffs’ “leverage” in the nation’s courtrooms. The decision ended the constitutional support of state-supported segregation–which existed across the nation but was most notorious in the southern Jim Crow regime–and raised blacks’ expectations that federal judges would at long last begin to enforce their rights under the Fourteenth Amendment.[151] Real progress toward formal equality for blacks, of course, required the enactment of civil rights legislation and, of course, local litigation to enforce the new laws through judicial decisions. Significant political and social change came slowly and only with boycotts, marches, and martyrdom. Nevertheless, African Americans justifiably celebrate the Brown decision as a turning point in their history.[152]
The legacy of Brown is more troubled for Mexican Americans. In the years immediately following the decision, it was reasonable for Mexican American lawyers to regard the decision as applicable only to the sort of discrimination suffered by African Americans. Because popular racism as well as some official biracial classifications survived Brown, it was also reasonable for them to rely on tried and true approaches. The legal profession is naturally conservative–not in terms of political ideology, but in terms of respecting and recognizing settled and preferably favorable precedent. The changes in African Americans’ political and social positions that had developed during the decade after Brown did not mean that similarly conservative federal judges would–if asked to do so–agree to over-look a well-established jurisprudence, recognize Mexican Americans as a de jure minority, and grant equitable relief under Brown.
Why did Mexican Americans lawyers finally seek to appropriate the “revolutionary” decision Brown and so stake a claim to the judicially administered equitable remedies available through the equal protection clause? Critics of the legal profession as well as critics of remedial civil rights programs such as affirmative action would likely argue that the Mexican American lawyers were opportunistic and cynical–that they sought certain legislatively derived benefits and finally hit upon the proper formula for obtaining them. Why else, critics (themselves cynics) might ask, would legal representatives of an ethnic group proud of its historically mainstream identity suddenly seek to obtain judicial recognition that their clients were in fact members of a minority that as a class had been subjected to discrimination by a dominant majority? Part of the answer, I believe, is that lawyers like DeAnda were pragmatic realists, not cynical opportunists. They adopted an “other white” identity because judicial precedents prior to Brown dictated that approach as the best for achieving their goals. They did not attack the constitutional foundations of Jim Crow because such an approach would not serve their clients’ immediate needs and, in all likelihood, would fail completely. African American lawyers, by contrast, planned and executed a constitutional revolution because they needed one. By the 1960s, frustrated by a general lack of social progress, Mexican American lawyers needed a revolution as well, and they at long last abandoned a dead-end strategy.
Such were the external legal considerations that contributed to a paradigm shift on “other whiteness.” But another important impetus for the novel premises of the Cisneros suit emerged from social and political pressures that were internal to Mexican American politics (albeit also characteristic of the 1960s). A younger generation of activists began to stake out a new identity as a mystical “bronze race”–the Chicano movement’s La Raza–that explicitly repudiated the older generations’ painstakingly constructed whiteness. The need to combine the internal and external forces was revealed when Chicano students protested the Anglos’ cultural hegemony by walking out of classrooms in the late 1960s. Two-thirds of Mexican American students attended Mexican American majority schools. Forty percent were enrolled at schools where the student body was at least 80 percent Mexican American. Twenty percent attended schools that were at least 95 percent Mexican American.[153] Such imbalance was maintained by the reliance by school boards on neighborhood schooling plans for desegregation. No litigation that attacked testing or tracking would have changed this ethnic concentration. The use of the existing biracial (black-white) formulas, moreover–under which administrators transferred African American students into predominantly Mexican American schools and called the schools “desegregated”–promised to isolate both populations even more instead of ending a separation that was, according to Brown, inherently unequal. In this way, perhaps, school administrators themselves revealed to Mexican American lawyers the bankruptcy of “other white” arguments and the utility of Brown.
The contemporaneous creation of MALDEF had less to do with the shift in thinking than might be expected. The upheavals brought by the black civil rights struggle, the farm workers’ movement, and antiwar protests inspired many disaffected Mexican-descended youths to adopt similar goals and direct action tactics–such as walkouts and other disruptive demonstrations–in order to combat the inequities they encountered. As a result, however, activists frequently found themselves sanctioned by school administrators or even law enforcement agencies.[154] Instead of suing schools to change the rules of desegregation, therefore, MALDEF undertook a number of cases that established the new organization as something of an un-official civil liberties bureau for militant Chicano students. Significantly, in these cases, MALDEF’s attorneys did not argue–and in civil liberties cases had no reason to claim–that Mexican Americans were and ought to be considered a group distinct from Anglos. Nevertheless, MALDEF’s early victories in this field helped to reestablish litigation as a tool for vindicating Mexican Americans’ civil rights.[155]
The recognition that formerly favorable precedents had become counterproductive, combined with the challenges to the conventional wisdom posed by the Chicano movement, led some lawyers to rethink the basis of Mexican Americans’ civil rights litigation. The plaintiffs and their lawyers in Corpus Christi opened an important new front in the civil rights struggle by abandoning the dubious benefits of whiteness–thus adopting the heart of the Chicano argument, if not the whole body–and choosing to make fresh claims under Brown. The favorable decision in the Cisneros litigation established a new precedent that allowed Mexican Americans finally to commence in earnest what Rubén Donato has called the “other struggle for equal schools.”[156]
The Mexican Americans’ newly reinvigorated legal efforts would continue to evolve in response to changing social, political, and legal conditions. The unfortunate truth, of course, is that Mexican Americans had not missed much actual school desegregation during the fifteen years that they sat on the sidelines–African Americans had in fact made little progress during that first decade and a half after Brown was decided. But Mexican Americans nevertheless saw evidence that some slow progress was being made. In 1979, for example, James DeAnda was appointed to a new judicial seat in the Southern District of Texas and so became the nation’s second Mexican American federal district judge. He was sworn in by the first, Reynaldo Garza, who since 1961 had risen by dint of seniority to become the chief judge in the district.[157]
Steven H. Wilson received his doctorate in history at Rice University. He is a consultant in Houston specializing in litigation research and analysis. Wilson wishes to express his appreciation to the anonymous readers of Law and History Review, to his mentor Harold M. Hyman of Rice, and to his colleague Carlos K. Blanton of Texas A&M University. Comments and criticism from these scholars greatly improved this article.
Notes
1. The Brown litigation was an archetype of the long-term remedial approach for bringing about fundamental reform that Abram Chayes, in an influential article, called “public law litigation.” Abram Chayes, “The Role of the Judge in Public Law Litigation,” Harvard Law Review 89 (1976): 1282-86.
2. Advocates of women’s rights initiated their own campaign of “public law litigation” in the 1970s. See Karen O’Connor, Women’s Organizations’ Use of the Courts (Lexington: Lexington Books, 1980); and Susan Gluck Mezey, In Pursuit of Equality: Women, Public Policy, and the Federal Courts (New York: St. Martin’s Press, 1992). A similar pattern led to suits by other disenfranchised groups, such as criminal defendants, prison inmates, and mental patients. See Phillip J. Cooper, Hard Judicial Choices: Federal District Court Judges and State and Local Officials (New York: Oxford University Press, 1988).
3. In this article, I address the experiences of Mexican Americans, but a longstanding debate surrounds this and many other terms referring to ethnic, cultural, or racial groups. I bow to the decision made by another scholar, Ian F. Haney López, and intend the term “Mexican Americans” to mean all permanent immigrants to the United States from Mexico and their descendants, as well as persons descended from the Mexican inhabitants of the region acquired by the United States in the late 1840s under the Treaty of Guadalupe Hidalgo. See Ian F. Haney López, White by Law: The Legal Construction of Race (New York: New York University Press, 1996), xiv.
4. See Jorge C. Rangel and Carlos M. Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” Harvard Civil Rights-Civil Liberties Law Review 7 (1972): 331-33, 342-43, esp. n. 216, and 348-49; Gerald M. Birnberg, “Notes: Brown v. Board of Education Applies to Mexican-American Students and Any Other Readily Identifiable Ethnic-Minority Group or Class,” Texas Law Review 49 (1971): 339; and Guadalupe Salinas, “Comment: Mexican-Americans and the Desegregation of Schools in the Southwest,” Houston Law Review 8 (1971): 939.
5. Mark V. Tushnet, The NAACP’s Legal Strategy against Segregated Education, 1925-1950 (Chapel Hill: University of North Carolina Press, 1987), xi.
6. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 495. The decision is known as Brown I; it joined various “School Segregation Cases” from Kansas, South Carolina, Virginia, and Delaware. See also Brown v. Board of Education of Topeka, 349 U.S. 294 (1955) [Brown II] and Bolling v. Sharpe, 347 U.S. 497 (1954), the latter declaring segregated public schools in the District of Columbia to be unconstitutional. See Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (New York: Vintage Books, 1975); and Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (New York: Basic Books, 1994).
7. For the role played by federal judges in the post- Brown civil rights era, see J. W. Peltason, 58 Lonely Men: Southern Federal Judges and School Desegregation, new ed. (1961; Urbana: Illini Books of the University of Illinois Press, 1971).
8. James T. Patterson, Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy (New York: Oxford University Press, 2001), xxvii-xxix. The Brown decision was limited to schools, and therefore, the Court did not actually condemn segregation in public accommodations until after the Montgomery, Alabama, bus boycott. Gayle v. Brow-der, 352 U.S. 903 (1956).
9. This provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution, Fourteenth Amendment, Section I. Mexican Americans used process-based “other white” arguments in a long line of state and federal suits. George A. Martinez, “Legal Indeterminacy, Judicial Discretion and the Mexican-American Litigation Experience: 1930-1980,” University of California at Davis Law Review 27 (1994): 555.
10. Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 607.
11. See “DeAnda,” in Judges of the United States, 2d ed. (Washington, D.C.: Bicentennial Committee of the Judicial Conference of the United States, 1983) [hereafter cited as: Judges of the United States]. For the atmosphere of nativism in the first quarter of the twentieth century, see Mae M. Ngai, “The Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 1924,” Journal of American History 86 (1999): 67.
12. Sweatt v. Painter, 339 U.S. 629 (1950). Heman Sweatt, the African American mail carrier who filed the suit, was also from Houston. The Court declared that the separate law school established for Negroes in Houston could never be the equal of the University of Texas law school, because the latter enjoyed “intangible” advantages, such as the reputation of its faculty and the interaction of its students, which rendered it superior. A related graduate desegregation case is McLaurin v. Board of Regents, 339 U.S. 637 (1950).
13. Oral History Interview with James DeAnda, by Steven H. Wilson (20 May 1998). For similar recollections in a more convenient format (although in a profile that contains some minor inaccuracies regarding some of the cases discussed), see Student News Feature, “Judge James DeAnda: Graduate Blazed Trails in Texas Civil Rights,” Townes Hall Notes (Fall 2000): 74-77. For one Houston firm’s record of hiring–or of not hiring–lawyers of Hispanic descent, see Harold M. Hyman, Craftsmanship and Character: A History of the Vinson & Elkins Law Firm of Houston, 1917-1997 (Athens: University of Georgia Press, 1998), 412.
14. 163 U.S. 537 (1896).
15. See Act of 20 May 1893. 23rd Legislature, General Laws of Texas, chap. 122, “Public Free Schools,” sec. 15, the relevant part of which states: “The terms ‘colored race’ and ‘colored children,’ as used in the preceding, and elsewhere in this act, include all persons of mixed blood descended from negro ancestry.” See H. P. N. Gammel, compiler, The Laws of Texas, 1822-1897 (Austin: H. P. N. Gammel Book Company, 1898), 10:616. The Texas Legislature reenacted the statute, including its definition of “colored children,” by the Act of April 1905, 29th Legislature, p. 263, secs. 93-96, 128. This was subsequently codified in the General Provisions, chap. 19, arts. 2897-99. Complete Texas Statutes (Kansas City: Vernon Law Book Company, 1920), 491. The final codification of the “Jim Crow” school laws in Texas came in the Revised Statutes (R.S.), chap. 19, art. 2900 [combining former arts. 2897-98]. See C. H. Jenkins, The Revised Civil Statutes of Texas, 1925, Annotated (Austin:
H. P. N. Gammel Book Co., 1925), 1:1036.
16. Juan Gómez-Quiñones, Roots of Chicano Politics, 1600-1940 (Albuquerque: University of New Mexico Press, 1994), 360-61. Also see David G. Gutiérrez, Walls and Mirrors: Mexican Americans, Mexican Immigrants, and the Politics of Ethnicity (Berkeley: University of California Press, 1995), 53. Many persons of Mexican descent may also have an African descent; clearly, however, the “one drop rule” as described in the Texas statutes (and those of most other southern states) did not apply generally to Mexican Americans. F. James Davis, Who Is Black? One Nation’s Definition (University Park: Pennsylvania State University Press, 1991), 114-15, and generally.
17. David Montejano, Anglos and Mexicans in the Making of Texas, 1836-1986 (Austin: University of Texas Press, 1987). The basic facts of this story applied across the nation and especially in the southwest. In this article, I explore in particular the shifting racial identity of Mexican Americans in Texas. The state’s particular history and geography combined to make Texas law and society reflective of regional prejudices from both the South and Southwest. See Neil Foley, The White Scourge: Mexicans, Blacks, and Poor Whites in Texas Cotton Culture (Berkeley: University of California Press, 1997), 1-12. The term “Anglo” may need some clarification. It literally refers to those of “English” descent and so is somewhat inadequate to account for descendants of the Bohemians (Czechs), Germans, or other Europeans who settled in Texas. In 1970, however, the U.S. Civil Rights Commission noted that, as it was customarily employed in the Southwest, the term “Anglo” referred “to white persons who are not Mexican Americans or members of some other Spanish surnamed groups” and that it carried “no derogatory connotations.” United States Commission on Civil Rights, Mexican Americans and the Administration of Justice in the Southwest: Summary (Washington, D.C.: U.S. Government Printing Office, 1970), 2, and note.
18. In 1849 the California state constitution granted Mexicans the same citizenship rights enjoyed by Anglo-Americans. See Ngai, “The Architecture of Race in American Immigration Law,” 88, esp. n. 47.
19. In re Rodriguez, 81 Fed. 337 (W.D. Texas, 1897).
20. Ngai, “The Architecture of Race in American Immigration Law,” 92.
21. Ibid., 88-90.
22. Ibid., 89.
23. Ibid., 91.
24. Ian F. Haney López, “Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory,” California Law Review 85 (1997): 1148, n. 20, 1170-71, and 1179, n. 115.
25. Gómez-Quiñones, Roots of Chicano Politics, 366-69; Gutiérrez, Walls and Mirrors, 51-65, 80-87. The Americanization movement was fed by World War I-era xenophobia. “Hyphenated” Americans were thought to have divided, therefore questionable, loyalty. The movement aimed to educate immigrants and transform the foreign-born into citizens who were both English-speaking and “100 percent American.” John F. McClymer, “The Americanization Movement and the Education of the Foreign-Born Adult, 1914-1925,” in American Education and the European Immigrant, 1840-1940, ed. Bernard H. Weiss (Urbana: University of Illinois Press, 1982), 105.
26. See Henry A. J. Ramos, The American G.I. Forum: In Pursuit of the Dream, 1948-1983 (Houston: Arte Público Press, 1998); and Carl Allsup, The American G.I. Forum: Origins and Evolution (Austin: Center for Mexican American Studies, 1982).
27. Guadalupe San Miguel, Jr., “Let All of Them Take Heed”: Mexican Americans and the Campaign for Educational Equality in Texas, 1910-1981 (Austin: University of Texas Press, 1987), 69-70, 116, 165-71.
28. Acts of 29th Legislature, chap. 124, sec. 102. Legislators later amended the law to prohibit the use of textbooks not printed in the English language. However, the statutes did not prevent teaching or learning languages other than English. For example, the English-only laws did not prevent the “teaching of Latin, Greek, French, German, Spanish, Bohemian, or other language as a branch of study in the high school grades as outlined in the state course of study.” Acts of 1918, 4th Civil Statutes, chap. 80, sec. 1. Codified in the General Provisions, chap. 19, art. 2904(5a). The latter three languages are included because many Texans or their ancestors originally had emigrated from the regions of Bohemia (the present-day Czech Republic), Germany, and, of course, Mexico, during the nineteenth century, and linguistic enclaves persisted throughout the state. In 1918, patriotic Texas lawmakers authorized criminal sanctions against school teachers who taught students in a language other than English. Convicted violators were subject to fine and dismissal. Texas Penal Code, arts. 1038(a)-1038(f). See Complete Texas Statutes, 492.
29. Montejano, Anglos and Mexicans in the Making of Texas, 160, 191-96.
30. Gómez-Quiñones, Roots of Chicano Politics, 374. Quote from the case, Inhabitants of Del Rio Independent School District v. Jesus Salvatierra, 33 S.W. 2d 790 (Tex. Civ. App., 1930), at 794; dismissed for lack of jurisdiction, and cert. denied, 284 U.S. 580 (1931) [hereafter Salvatierra]. (Some references cite the case as “Salvatierra v. Independent School District.”)
31. The superintendent testified that he did not send English-speaking children “who came in late over to the school where I sent the Mexican or Spanish speaking children. . . .” Ibid.,
792-93.
32. Emphasis added. Ibid., 794-95. The plaintiffs sought to bring this case before the U.S. Supreme Court, but the Court dismissed the appeal for lack of jurisdiction. 284 U.S. 580 (1931).
33. Charles L. Glenn with Esther J. de Jong, Educating Immigrant Children: Schools and Language Minorities in Twelve Nations (New York: Garland Publishing, 1996), 338.
34. Martinez, “Legal Indeterminacy,” 577-80. The ruling bedeviled Mexican American civil rights litigants for decades. Forty years later, federal courts ruled that bilingual education might reduce the language and even culture problems better than segregation. United States v. Texas, 342 F.Supp. 24 (E.D.Tex., 1971). See Frank R. Kemerer, William Wayne Justice: A Judicial Biography (Austin: University of Texas Press, 1991), chap. five.
35. Mendez v. Westminster School District, 64 F.Supp. 544 (S.D.Cal., 1946).
36. Kluger, Simple Justice, 399-400. The civil rights litigators rarely coordinated suits with their counterparts. But organizations representing Mexican Americans and African Americans in civil rights litigation occasionally made common cause, either as interveners in suits or as writers of amicus curiae briefs in support of one another’s positions. However, leaders of the various civil rights organizations were often jealous of their perceived turf and reacted poorly to interference from other organizations. Stephen L. Wasby, Race Relations in an Age of Complexity (Charlottesville: University Press of Virginia, 1995), 123-24.
37. Mendez, 64 F.Supp. 549. Regarding these Mexican American desegregation cases, one commentator noted how “strikingly similar” this 1946 pronouncement is to statements made by the Supreme Court eight years later, in Brown. Salinas, “Mexican-Americans and the Desegregation of Schools in the Southwest,” 940.
38. Mendez, 64 F.Supp., 549.
39. Westminster School District v. Mendez, 161 F.2d 774 (9th Cir., 1947), 781. See also, Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1849), in which the Massachusetts courts ruled that in the absence of legislation, local school boards nonetheless had discretion to segregate. Mendez, 161 F.2d 779, n. 6.
40. Mendez, 161 F.2d 784.
41. State courts ruled against Mexican American efforts to desegregate public accommodations until forced to abandon the position by federal courts. As to restrictive covenants, the Supreme Court’s decision in Shelley v. Kraemer, 334 U.S. 1 (1948), prevented the state courts ruling against Mexican Americans. Martinez, “Legal Indeterminacy,” 573.
42. Opinion No. V-128, Digest of Opinions of the Attorney General of Texas (Austin: 1947), 39. See Rangel and Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” 335-36, esp. nn. 158-59.
43. Delgado v. Bastrop ISD, Civ. No. 388 (unreported: W.D.Tex., 15 June 1948).
44. Rice ultimately ruled that if a school district provided for linguistic segregation, any separate facilities must be located on the same campus as other classrooms. Ibid., 1-2.
45. L. A. Woods, “Official Communication from the State Superintendent of Public Instruction,” With Texas Public Schools, vol. 1, no. 1 (Austin: Texas Department of Education; September 1948): 1-3.
46. Ibid., secs. 6-7.
47. Ibid., sec. 1. No district needed to spend its budget on tests. Instead, the superintendent supplied addresses of the Austin publisher of exams and informed local officials that they may “[o]rder [a] supply of tests [for a] price [of] not more than $1.25 for the instructions and tests for 25 pupils.” In the spirit of local control, school district administrators retained discretion to segregate or not to segregate, and the decision was contingent on their willingness to spend their budget for that purpose. In addition, the superintendent would allow local officials to set their own standards for competency, “[s]ince the situation which we face requires immediate action.” He noted, however, that “[a]fter one year of experimentation and adjustment, then we may be ready to fix a state-wide standard.” Ibid., secs. 8-9.
48. Ibid., 3.
49. Salinas, “Mexican-Americans and the Desegregation of Schools in the Southwest,” 941. As noted, Delgado v. Bastrop was unpublished and so lacked much weight outside Texas. But the next reported federal case involving segregation of Mexican Americans, in Arizona three years after Delgado, supported Judge Rice’s essential findings. In Gonzalez v. Sheely, 96 F.Supp. 1004 (D.Ariz., 1951), the judge followed Mendez to find that a district that segregated Mexican American children into one school attended solely by Mexican Americans violated the children’s Fourteenth Amendment rights. The court determined that the physical segregation harmed students’ ability to learn English and retarded development of a common culture, which the judge thought was essential to full participation in American civic life. Further, the court found that the segregation fostered antagonism and wrongly suggested to the Hispanic children that they were inferior to Anglos. Ibid., 1005-7. The court enjoined discriminatory practices where the legislature had not specifically authorized segregation of students of Mexican descent. However, the Gonzales decision, once again following Mendez, did not forestall the probable result: continued separate classrooms for the language minority. Ibid., 1009. According to Martinez, even given this shortcoming, Gonzalez represented an advance over Salvatierra. Martinez, “Legal Indeterminacy,” 580.
50. Sanchez v. State, 243 S.W. 2d 700 (1951), 701; Case No. 25,496, Court of Criminal Appeals of Texas (also published at 156 Texas Cr. R. 468); November 21, 1951. See Haney López, “Race, Ethnicity, Erasure,” 1169-70, especially n. 83.
51. Hernandez v. State, 251 S.W. 2d 531 (1952), 533. Case No. 25,816, Court of Criminal Appeals of Texas; 18 June 1952. The qualifications for jury service in any Texas county included state and county citizenship; qualifications to vote in the county; status as a freeholder within the state, or a householder within the county; possession of sound mind and good moral character; and ability to read and write (presumably in English). Also, prospective jurors could not have been convicted of any felony and could not be under indictment or other legal accusation for theft or of any felony during the jury’s term of service. See Texas Code of Criminal Procedure (Kansas City: Vernon Law Book Company, 1948), arts. 333-50.
52. Norris v. Alabama, 294 U.S. 587 (1935). Also see Powell v. Alabama, 287 U.S. 45 (1932).
53. Hernandez v. State, 251 S.W. 2d 531 (1952), 535.
54. Serapio Sanchez v. State, 147 Tex. Crim. 436 (1944), 443; Case No. 22,856, Court of Criminal Appeals of Texas (also published at 181 S.W. 2d 87); May 17, 1944.
55. Hernandez v. State, 251 S.W. 2d 531 (1952), 532-35.
56. Ibid., 536.
57. Hernandez v. Texas, 347 U.S. 475 (1954).
58. Ibid., 479-81.
59. Ibid., 475, 477-81.
60. Furthermore, the Court held that even unintentional discrimination might constitute a denial of equal protection. Ibid., 475, 477-81.
61. See Haney López, “Race, Ethnicity, Erasure,” 1143-46, 1158-72, and 1187, n. 135. As noted, the Hernandez decision preceded Brown by two weeks, and Hernandez immediately precedes Brown in the published decisions of the U.S. Reports. Despite both temporal and literal proximity, scholars overlook the Hernandez case, or any Mexican American perspective, even in works focused on Texas’s desegregation battles. See Ladino, Desegregating Texas Schools. However, as mentioned above, in 1946 LDF’s Robert Carter filed an amicus brief in Mendez. Also, Kluger discussed the equal protection aspects of a later school-funding case with a Mexican American focus, San Antonio ISD v. Rodriguez, 93 S.Ct. 1278 (1973). See Kluger, Simple Justice, 399-400 (Mendez), 669-770 (Rodriguez).
62. Herminio Hernandez et al. v. Driscoll Consolidated Independent School District [hereafter Hernandez v. Driscoll CISD]; Civil Action (Civ.A.) 1384, U.S. District Court for the Southern District of Texas (S.D.Tex., 1957), Corpus Christi Division. For the published opinion, see 2 Race Relations Law Reporter 329 (S.D.Tex., 1957) [Race Rel. L. Rptr.]. Files for cases heard in the federal courts in Texas and the Fifth Circuit are preserved at the National Archives and Records Administration-Southwest Regional Archives (NARA-SWA), in Fort Worth, Texas. This case may be found in Civil Cases, S.D.Tex., Corpus Christi Division, 1938-1969, Record Group (RG) 21, Boxes 232-33, folders for C.A. 1384 [the hearing transcript for Hernandez v. Driscoll CISD is loose in Box 233]. Subsequent references to the files in Hernandez v. Driscoll CISD are to this NARA-SWA record group.
63. Allred, “Opinion,” pp. 3-6. NARA-SWA. RG 21, Box 232, Folder 1: “1384 Herminio Hernandez et al. v. Driscoll Consolidated ISD.”
64. Hearing transcript of Hernandez v. Driscoll, vol. 1, pp. 6, 63-64, 93-95. NARA-SWA. RG 21, Box 233.
65. Hernandez v. Driscoll CISD, 2 Race Rel. L. Rptr. 329 (S.D.Tex., 1957). Judge Allred was a rare specimen in Texas politics in the 1950s–a truly liberal Democrat. See Patricia A. Tidwell, “James V. Allred of Texas: A Judicial Biography” (M.A. Thesis, Rice University, 1991). Also see Charles L. Zelden, Justice Lies in the District: The U.S. District Court, Southern District of Texas, 1902-1960 (College Station: Texas A&M University Press, 1993), 153, 177. Hernandez v. Driscoll CISD was the first post- Brown Mexican American desegregation case to be decided by the federal courts, although it was not the first filed after Brown. The first such case to reach the federal courts was Romero v. Weakly, 131 F.Supp. 818 (S.D.Cal., 1955), in which Mexican Americans filed suit against the El Centro School District. Attorneys for the defendant school district claimed that the state courts had yet to apply and construe applicable California laws and argued that the federal district judge should abstain. (Under the Pullman abstention doctrine, federal courts seek to avoid premature interference with the state courts’ construction of state laws; see Railroad Commission of Texas v. Pullman, 312 U.S. 496 [1941], 501.) The judge agreed with the school district and dismissed the suit. The judges of the U.S. Court of Appeals for the Ninth Circuit reversed that decision and ordered the district court to hear the case. Romero v. Weakly, 226 F.2d 399 (9th Cir., 1955), 402. Significantly, the Ninth Circuit judges observed that the Mexican American plaintiffs might have sought federal intervention after concluding that federal judges would be more open to their arguments than judges in the state courts, because the state judges are elected and federal judges are appointed for life. Ibid., 401. Martinez believes this to be a key point, because Mexican Americans had not enjoyed much success in California state courts. See Martinez, “Legal Indeterminacy,” 581-82. By the time Romero reached rehearing, Driscoll CISD was well underway in Texas.
66. DeAnda et al., “Complaint to Enjoin Violation of Federal Civil Rights and For Damages,” pp. 1-2. NARA-SWA. RG 21, Box 232, Folder 3: “1384 Hernandez v. Driscoll.” Specifically, the complaint referred to 42 U.S.C. secs. 1981-83 (formerly, 8 U.S.C. sec. 43). These statutes were codifications of the Civil Rights Acts of 1870 and 1871, which provided as follows: “[a]ll persons within the jurisdiction of the United States shall have the same rights in every state . . . to the full and equal benefit of all laws . . . as is enjoyed by white citizens . . .” [Act of 1870, sec. 16, codified 42 U.S.C. sec. 1981]; and “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . .” [Act of 1871, sec. 1, codified 42 U.S.C. sec. 1983]. DeAnda also represented similarly situated plaintiffs in Trinidad Villareal et al. v. Mathis Independent School District of San Patricio City et al., which he filed at the same time as Hernandez v. Driscoll CISD, and on the same grounds. Judge Allred granted the defendants’ motion to dismiss the case in May 1957, after DeAnda’s expert witness begged off. Villareal v. Mathis ISD; Civ.
A. 1385 (S.D.Tex., Corpus Christi Division, 2 May 1957). NARA-SWA. RG 21, Civil cases of the S.D.Tex., Corpus Christi Division, 1938-69, RG 21, Box 233, Folder “1385.”
67. DeAnda et al., “Complaint to Enjoin Violation of Federal Civil Rights and for Damages,” p. 5. To make up for this deprivation, the plaintiffs also sought to obtain damages from the board. Requested damages for each individual plaintiff were $4000 in actual damages for the estimated wages lost after being unnecessarily held back in school for two years and another $4000 in punitive damages. Ibid., pp. 7-8.
68. In December, Allan Davis of the Corpus Christi firm Boone, Davis, Cox and Hale, answered for Driscoll CISD. “Answer,” NARA-SWA. RG 21, Box 232, Folder 2: “1384 Hernandez v. Driscoll.”
69. DeAnda et al., “Plaintiffs’ Pre-Trial Memorandum,” p. 1; NARA-SWA. RG 21, Box 232, Folder 2: “1384 Hernandez v. Driscoll” [emphasis added; the reference is to Mendez].
70. Ibid., pp. 1-2.
71. Hearing transcript of Hernandez v. Driscoll, vol. 1, pp. 11-12; NARA-SWA. RG 21, Box 233 [no folder]. Davis retorted that language segregation was necessary for the education of both classes of students. Ibid., vol. 1, p. 4.
72. Ibid., vol. 1, pp. 50-65.
73. Hearing transcript of Hernandez v. Driscoll CISD, vol. 3, p. 544; NARA-SWA. RG 21, Box 233 [no folder].
74. Ibid., pp. 545-46.
75. Ibid.
76. Ibid., p. 548.
77. Docket log, NARA-SWA. RG 21, Box 232, Folder 1: “1384 Herminio Hernandez et al. v. Driscoll Consolidated ISD.”
78. DeAnda et al., “Plaintiffs’ Brief,” p. 8; NARA-SWA. RG 21, Box 233 [no folder].
79. Davis et al., “Brief for Defendants,” pp. 12-13; NARA-SWA. RG 21, Box 233 [no folder]. Davis attempted to reargue rather than to summarize his case. He concluded that the “only question which the courts should decide” is whether the district acted in good faith. Ibid., p. 6. Davis contended that the plaintiffs did not represent a proper “class” with standing under Federal Rules of Civil Procedure. Fed.R.Civ.P. Rule 23(a). Allred’s reply was a curt: “[t]his contention comes a bit late and is overruled.” Allred, “Opinion,” NARA-SWA. RG 21, Box 232, Folder 1: “1384 Herminio Hernandez et al. v. Driscoll Consolidated ISD.”
80. DeAnda et al., “Plaintiffs’ Brief,” p. 8; NARA-SWA. RG 21, Box 233 [no folder].
81. DeAnda et al., “Plaintiffs’ Reply to Defendants’ Brief,” p. 6; NARA-SWA. RG 21, Box 233 [no folder].
82. Allred, “Opinion,” p. 12, esp. n. 13; NARA-SWA. RG 21, Box 232, Folder 1: “1384 Herminio Hernandez et al. v. Driscoll Consolidated ISD.” See also 2 Race Rel. L. Rptr. 329, at 332-33.
83. Allred, “Judgment,” p. 2; NARA-SWA. RG 21, Box 232, Folder 1: “1384 Herminio Hernandez et al. v. Driscoll Consolidated ISD.”
84. Martinez, “Legal Indeterminacy,” 583-84. Martinez analyzes (mostly published) decisions concerning Mexican American litigation of civil rights issues between 1930 and 1980. Among the stated goals of his article is an attempt “to demonstrate that courts’ decisions either for or against Mexican-Americans were often not inevitable or compelled” and to expose the extent to which courts have exercised discretion and “helped or failed to help establish the rights of Mexican-Americans.” Ibid., 559.
85. Salinas, “Mexican-Americans and the Desegregation of Schools in the Southwest,” 941; Guadalupe San Miguel, Jr., “Mexican American Organizations and the Changing Politics of School Desegregation in Texas, 1945-1980,” Social Science Quarterly 63 (1982): 708-9.
86. Allsup, The American G.I. Forum, 94-97; and Ramos, The American G.I. Forum, 22, 58-63.
87. For the practice of “tracking,” see Rangel and Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” 331-33, esp. n. 139.
88. Chapa v. Odem Independent School District (S.D.Tex., 1967) [Corpus Christi Division, Civ. No. 66-C-72]. Judge Seals requested additional evidence to support the validity of the ability testing in general. See Rangel and Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” 347-48, including nn. 241-45.
89. For these events, see Ignacio M. Garcia, Viva Kennedy: Mexican Americans in Search of Camelot (College Station: Texas A&M University Press, 2000); and J. Gilberto Quezada, Border Boss: Manuel B. Bravo and Zapata County (College Station: Texas A&M University Press, 1999).
90. DeAnda admitted much later that–at thirty-five years old–he was probably too young to be a serious nominee for a federal judgeship. Oral History Interview with DeAnda (20 May 1998). Politicians coveted such judgeships because they could both pay off political debts and advance agendas. In 1959 both U.S. senators from Texas were Democrats–including the ambitious Senate majority leader Lyndon Johnson. Ralph W. Yarborough, who led the liberals in Texas, had been in the U.S. Senate for only one year but became Texas’s senior senator when Johnson became vice-president in 1961. Republican John Tower replaced Johnson after winning a special election. Zelden, Justice Lies in the District, 210. Chandler Davidson, Race and Class in Texas Politics (Princeton: Princeton University Press, 1990), 29-32, 166.
91. Garza was born on 7 July 1915, graduated from Brownsville Junior College in 1935, and two years later won the B.A. degree from the University of Texas at Austin. In 1939 he received the bachelor of laws degree from the University of Texas law school. While still a student in Austin, Garza worked on Johnson’s early campaigns, and he had remained a keen supporter during Johnson’s runs for successively higher offices. This loyalty gave Garza priority over Yarborough’s claims. See Louise Ann Fisch, All Rise: Reynaldo G. Garza, the First Mexican American Federal Judge (College Station: Texas A&M University Press, 1996), 70-77. Although this appointment pleased the Mexican American community in principle, it was also a practical reminder that Johnson had overridden preferences held by many Mexican Americans. Julie Leininger Pycior, LBJ and Mexican Americans: The Paradox of Power (Austin: University of Texas Press, 1997), 116-24. See also Allsup, The American G.I. Forum, 133, and San Miguel, Jr., “Let All of Them Take Heed,” 164-65. (Allsup and San Miguel incorrectly identify Garza as a Republican, apparently because he had joined Texas Governor Allan Shivers in supporting the Republican Eisenhower against Democrat Adlai Stevenson.)
92. This requires clarification. Garza was not actually first, but he was the first federal judge to be widely recognized as a Mexican American. In 1947, President Truman appointed Harold R. Medina, the son of a Mexican father and an Anglo mother, to the Southern District of New York. Medina was later promoted to the Second Circuit. Judge Medina dedicated a volume of his collected writings and speeches “to my father, Joaquin Adolfo Medina, born in the city of Merida, Yucatan, Mexico, on November 27, 1858.” See Harold R. Medina, The Anatomy of Freedom, ed. C. Walter Barrett (New York: Henry Holy and Co., 1959), v. But Medina was not regarded as Hispanic by Anglo politicians and apparently was not raised as a Hispanic. Therefore, Medina’s appointment is generally not regarded as politically significant as Garza’s. The fact of an earlier, unrecognized or unremarked Hispanic on the federal bench underscores the fluidity of racial and ethnic identity among Hispanics. Fisch, All Rise, 177, n. 1; Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan (New Haven: Yale University Press, 1997), 196, n. kk.
93. Armando Navarro, The Cristal Experiment: A Chicano Struggle for Community Control (Madison: University of Wisconsin Press, 1998), 17-51. For political developments in the same city after the Chicano movement emerged, see ibid.; Armando L. Trujillo, Chicano Empowerment and Bilingual Education: Movimiento Politics in Crystal City, Texas (New York: Garland Publishing, 1998); and Montejano, Anglos and Mexicans in the Making of Texas, 282-84.
94. Manuel P. Servín, “The Post-World War II Mexican-American, 1945-1965: A Non-Achieving Minority,” in The Mexican-Americans: An Awakening Minority, ed. Manuel P. Servín (Beverly Hills: Glencoe Press, 1970), 144. See “Latin Leaders Walk Out on U.S.,” Texas Observer, 15 April 1966, 5. Juan Gómez-Quiñones, Chicano Politics: Reality and Promise, 1940-1990 (Albuquerque: University of New Mexico Press, 1990), 106-8. For the significance of this event, see Allsup, The American G.I. Forum, 160-61. For jealousies between Blacks and Mexican Americans in the mid-1960s, see Fred Barbaro, “Ethnic Resentment,” in Black/Brown/White Relations: Race Relations in the 1970s, ed. Charles V. Willie (New Brunswick: Transaction Books, 1977), 77-79.
95. Helen Rowan, “A Minority Nobody Knows,” in Mexican Americans in the United States: A Reader, ed. John H. Burma (Cambridge: Schenkman Publishing, 1978), 29.
96. San Miguel, Jr., “Let All of Them Take Heed,” 164-69; and San Miguel, Jr., “Mexican American Organizations and the Changing Politics of School Desegregation,” 708-9.
97. The Supreme Court first described “de facto segregation” in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), in which the justices upheld court-ordered busing.
98. Armando Navarro, Mexican American Youth Organization: Avant-Garde of the Chicano Movement in Texas (Austin: University of Texas Press, 1995), 22-36; Gómez-Quiñones, Chicano Politics: Reality and Promise, 101-5. Older leaders like Dr. Garcia were also impressed by the determination demonstrated through marches and strikes, and they noticed when the farm workers’ plight attracted national attention In late September 1966, Congress had amended the Fair Labor Standards Act (FLSA), ending agricultural workers blanket exemption from the statute. 29 U.S.C. sec. 206(5). Subsection 5 was added by Pub.L. 89-601, sec. 302; 80 Stat. 830.
99. See Gómez-Quiñones, Chicano Politics: Reality and Promise, 118-19; Ignacio M. Garcia, Chicanismo: The Forging of a Militant Ethos among Mexican-Americans (Tuscon: University of Arizona Press, 1997), 1-4; and Armando B. Rendón, Chicano Manifesto: The History and Aspirations of the Second Largest Minority in America (Berkeley: Ollin and Associates, 1996; first published, 1971), 200-202. For a discussion of the generational issues that led to the rise of the Chicano challenge to the “Mexican American Generation,” see Armando Gutiérrez and Herbert Hirsch, “The Militant Challenge to the American Ethos: ‘Chicanos’ and ‘Mexican Americans,'” in La Causa Politica: A Chicano Politics Reader, ed.
F. Chris Garcia (Notre Dame: University of Notre Dame Press, 1974), 86-103; Mario T. Garcia, Mexican Americans: Leadership, Ideology, and Identity, 1930-1960 (New Haven: Yale University Press, 1989), 13-22; and Carlos Munoz, Youth, Identity, Power: The Chicano Movement (New York: Verso, 1989).
100. Navarro, Mexican American Youth Organization, 174, 198. Tension grew between generations, and the division was widened by the broader issues of the day. For example, after St. Mary’s University students founded the Mexican American Youth Organization (MAYO) in 1967, they used it as a forum to criticize and to protest the Vietnam conflict as evidence of the continued imperialism, violence, and racism they alleged was a major theme in U.S. history. U.S. Representative Henry B. Gonzalez of San Antonio, the longtime friend of President Johnson, responded by denouncing Chicanos’ militant rhetoric as “hate.” He repeatedly defended Mexican Americans’ patriotism on the floor of the House. In 1969, Gonzalez rejected the label “Chicano” and described himself as “an American of Spanish surname and of Mexican descent . . . what is commonly referred to as a Mexican American.” Henry B. Gonzalez, from the Congressional Record, 22 April 1969, 91st Congress, 1st Session, “An Attack on Chicano Militants,” in A Documentary History of the Mexican Americans, ed. Wayne Moquin with Charles Van Doren (New York: Praeger, 1971), 358.
101. 42 U.S.C. sec. 2000(a); see Salinas, “Mexican-Americans and the Desegregation of Schools in the Southwest,” 939.
102. See “Comment: The Courts, HEW, and Southern School Desegregation,” Yale Law Journal 77 (1967): 321.
103. Singleton v. Jackson Municipal Separate School District, 348 F.2d 729 (5th Cir., 1965). The case is known as Singleton I. In Singleton II, which followed the next year, the Fifth Circuit judges declared the HEW guidelines to be minimum standards and made it clear that district judges should not “abdicate” their responsibilities regarding desegregation merely by conforming to the guidelines. 355 F.2d 865 (5th Cir., 1966).
104. San Miguel, Jr., “Let All of Them Take Heed,” 175-77.
105. Noted in Rangel and Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” 365-66, nn. 352-69. Also see Testimony of Jerold D. Ward, 11 December 1968, in U.S. Commission on Civil Rights, Hearing Held in San Antonio, Texas, 9-14 December 1968 (Washington, D.C.: U.S. Commission on Civil Rights, 1968), 331-39.
106. Carlos Guerra, “Discourse By an Other,” Texas Observer, 27 October 1967, 14.
107. Salinas, “Mexican-Americans and the Desegregation of Schools in the Southwest,” 941; San Miguel, Jr., “Mexican American Organizations and the Changing Politics of School Desegregation,” 708-9.
108. Fees for counsel were provided in some employment discrimination cases under Title VII of the Civil Rights Act of 1964. 42 U.S.C. sec. 2000e-5(k). Congress later enacted provisions similar to those DeAnda suggested. See the “Emergency School Aid Act of 1972” (20 U.S.C. sec. 1617) and the “Civil Rights Attorneys’ Fees Awards Act of 1976” (42 U.S.C. sec. 1988).
109. James DeAnda, “Civil Rights–Need For Executive Branch to Take Positive Steps to Rectify Discrimination in Jury Selection, Voting Eligibility and School Enrollment,” in Inter-Agency Committee on Mexican American Affairs, The Mexican American: A New Focus on Opportunity (Washington, D.C.: U.S. Government Printing Office, 1967), 220-21. President Johnson created the Inter-Agency Committee in response to Mexican American complaints that his administration had ignored their community’s problems. The El Paso meetings became yet another point of contention, however, when the committee excluded the “militant” Mexican American leaders. See Allsup, The American G.I. Forum, 136-41; and Ramos, The American GI Forum, 99-106. In 1969, Congress established the “Committee on Opportunities for Spanish Speaking People” to succeed the Inter-Agency Committee. Public Law 181, 91st Cong., 83 Stat. 838 (1969).
110. Tijerina initiated the project after meeting and discussing the need for such an organization with Jack Greenberg, who was the LDF’s chief during the 1960s. Tijerina sought funding from the Ford Foundation at Greenberg’s suggestion. See Karen O’Connor and Lee Epstein, “A Legal Voice for the Chicano Community: The Activities of the Mexican American Legal Defense and Education Fund, 1968-82,” in The Mexican American Experience: An Interdisciplinary Anthology, ed. Rodolfo O. De La Garza, Frank D. Bean, Charles M. Bonjean, Ricardo Romo, and Rodolfo Alvarez (Austin: University of Texas Press, 1985), 284-85; San Miguel, Jr., “Let All of Them Take Heed,” 169-72; and Gómez-Quiñones, Chicano Politics: Reality and Promise, 110-12.
111. See “Testimony of Pete Tijerina,” 13 December 1968, in U.S. Commission on Civil Rights, Hearing Held in San Antonio, Texas, 9-14 December 1968 (Wash., D.C.: U.S. Commission on Civil Rights, 1968), 653-55. Richard L. Dockery, the Southwest regional director of the NAACP, had also testified in support of similar proposals. He told the commission that his organization included many Mexican American members and had recently established offices in San Antonio. See “Testimony of Richard L. Dockery,” 9 December 1968, ibid., 92-93. Richard Alatorre, a staff member of the NAACP’s Legal Defense Fund’s Southwest office, followed Tijerina on the program in San Antonio. He testified that the two legal defense organizations were making common cause to fight discrimination against all minority groups in the Southwest. See “Testimony of Richard Alatorre,” 13 December 1968, ibid., 656-57.
112. See “Testimony of Pete Tijerina,” Hearing Held in San Antonio, 653-55. The civil rights commissioners also heard testimony from education professor George I. Sanchez of the University of Texas, who had testified as an expert witness during DeAnda’s 1957 case. Like DeAnda and Tijerina, Sanchez described persistent discrimination against Mexican Americans that resulted from historical and cultural conditions specific to the Southwest. See “Testimony of George I. Sanchez,” 9 December 1968, ibid., 90-101. The commission hearings were summarized in “New Accent on Civil Rights: The Mexican American,” Civil Rights Journal 2 (Winter 1969): 16-23.
113. This ultimately proved to be a wise decision, because the U.S. attorney general waited until late 1969 before joining in a Mexican American lawsuit, Perez v. Sonora Independent School District, Civ. No. 6-224 (N.D.Tex, 1969). Noted in Birnberg, “Notes: Brown v. Board of Education Applies to Mexican-American Students,” 339, n. 10.
114. For discussion of variations on these “transfer” and “choice” rules, see Rangel and Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” 327-29, 342-43, n. 216, and 348-49; Birnberg, “Notes: Brown v. Board of Education Applies to Mexican-American Students,” 339; and Betsy Levin and Philip Moise, “School Desegregation Litigation in the Seventies and the Use of Social Science Evidence: An Annotated Guide,” Law and Contemporary Problems 39 (1975): 76-80.
115. See Rangel and Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” 342, 359. See Gary A. Greenfield and Don B. Kates, Jr., “Mexican Americans, Racial Discrimination, and the Civil Rights Act of 1866,” California Law Review 63 (1975): 662, 682. DeAnda sued the CCISD at a key moment in the history of the desegregation controversy. Before 1968, many federal judges presiding in school desegregation cases limited their participation to formally neutral supervisory activities. Few seemed concerned with the actual content of the early plans–hence the judicial approval for token desegregation under grade-a-year and freedom-of-choice schemes. The Fifth Circuit judges had authorized school desegregation fair and nondiscriminatory “freedom of choice” plans among the preferred options for desegregation. See Singleton I-II and United States v. Jefferson County Board of Education, 372 F.2d. 836 (5th Cir., 1966); en banc, 380 F.2d 385 (5th Cir., 1967). See also Nathaniel E. Gozansky, Kenneth Gignilliat, and William Horwitz, “School Desegregation in the Fifth Circuit,” Houston Law Review 5 (1968): 946-66.
116. In late 1968, the HEW examiners advised the CCISD superintendent that the school board should redraw the attendance boundaries to break up the segregated schools. HEW also suggested that the CCISD school board allow “majority-to-minority” transfers to enable students who were in the majority at a minority school voluntarily to shift to another school. Such students would be in the minority at the new school, but they would be taught in a desegregated environment. See Texas Advisory Committee to the U.S. Commission on Civil Rights, School Desegregation in Corpus Christi, Texas (Washington, D.C.: U.S. Government Printing Office, 1977), 42. For majority-to-minority transfer rules, see Swann, 402 U.S. 1 (1971), 26-27.
117. “They Call the Issue Busing,” Texas Observer, vol. 63, no. 22 (5 November 1971), p. 5.
118. See Texas Advisory Committee to the U.S. Commission on Civil Rights, School Desegregation in Corpus Christi, 8-14, 42-43; and “Testimony of Paul Montemayor,” in Texas Advisory Committee to the U.S. Commission on Civil Rights, Hearings in Corpus Christi, Texas, 4-5 May 1976 (Washington, D.C.: U.S. Government Printing Office, 1976), 1:67-68. Also noted in U.S. Commission on Civil Rights, Fulfilling the Letter and Spirit of the Law: Desegregation of the Nation’s Public Schools (Washington, D.C.: U.S. Government Printing Office, 1976), 108. Finally, see Allsup, The American G.I. Forum, 144.
119. Cisneros v. Corpus Christi Independent School District, Civil Action (Civ.A.) No. 68-C-95, U.S. District Court for the Southern District of Texas (S.D.Tex., 1972), Corpus Christi Division [hereafter cited as Cisneros v. CCISD]; Docket Sheet, p. 2. Files located at NARA-SWA, Civil cases, U.S.C.A., Fifth Circuit, Record Group (RG) 276, Box 6104, Folder for Case No. 71-2397, “. . . 1 of 2.”
120. Although DeAnda probably had the most experience in school desegregation litigation in Corpus Christi, the suit against the large, urban CCISD was more ambitious than any he had pursued against the Driscoll and Odem school districts. He recruited other reformminded attorneys to assist him, among them Houston’s Chris Dixie. Dixie was representing the plaintiffs in a federal civil rights suit related to their abortive attempt to organize a farm workers’ union in Texas. See Francisco Medrano et al. v. A.Y. Allee et al., 347 F.Supp. 605 (S.D.Tex., 1972) [Brownsville Division; Civ. No. 67-B-36], and Richard Bailey, “The Starr County Strike,” Red River Valley Historical Review 4 (1979): 47-48. The intersection of the goals of organized labor with the cause of Mexican American civil rights was a recurrent theme during the 1960s. The brief domination by Mexican Americans of the Crystal City municipal council in the early 1960s was another example. The campaign was led by the Political Association of Spanish Speaking Organizations (PASSO, or PASO), but the group received key support from the Teamsters. David Montejano, Anglos and Mexicans in the Making of Texas, 282-84; and Navarro, The Cristal Experiment, 17-51.
121. See Rangel and Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” 342, 359.
122. Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 601-2.
123. In the junior highs, one-third of the Mexican American and black students attended schools where the non-Anglo enrollment was greater than 90 percent. One-quarter of the Anglo students attended schools where the non-Anglo enrollment was less than 10 percent of the student body. Finally, in the CCISD elementary schools, forty-one percent of the Mexican Americans and African Americans attended schools where over 90 percent of the students were non-Anglo. Thirteen percent of the Anglo children attended elementary schools with less than 10 percent non-Anglo enrollment. Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 608. All of the figures in the text are approximate in the case record, and I have further rounded the numbers.
124. Ibid.
125. For the quoted passages and other excerpts of Dr. Carter’s testimony regarding the history of discrimination in social and economic areas, see ibid., 612, n. 38.
126. Ibid., 606, n. 30.
127. Ibid.
128. Ibid., 602, n. 11, 616-17, n. 49.
129. Ibid., 606.
130. Docket Sheet, p. 3; Cisneros v. CCISD. NARA-SWA: Civil cases, Fifth Circuit, RG 276, Box 6104, Folder for Case No. 71-2397, “. . . 1 of 2.”
131. Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 603, n. 26. Judge Seals quoted Professor Haskew from the hearing transcript, at p. 1223.
132. Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 600-601. See also Docket Sheet, p. 4; Cisneros v. CCISD. NARA-SWA: Civil cases, Fifth Circuit, RG 276, Box 6104, Folder for Case No. 71-2397, “. . . 1 of 2.”
133. See Amendments to the Federal Rules of Civil Procedure (Rule 23), 383 U.S. 1029 (1966), 1047.
134. See Tijerina v. Henry, 48 F.R.D. 274 (D.N.Mex., 1969); appeal dismissed, 398 U.S. 922 (1970). Noted in Birnberg, “Notes: Brown v. Board of Education Applies to Mexican-American Students,” 342, n. 29. Also, see Richard Delgado and Victoria Palacios, “Mexican-Americans as a Legally Cognizable Class Under Rule 23 and the Equal Protection Clause,” Notre Dame Law Review 50 (1975): 393.
135. Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 604.
136. Ibid., 605.
137. Ibid., 605, esp. n. 28. Judge Seals noted that “[i]t was decided as early as 1886 that although the Fourteenth Amendment may have been primarily concerned with Negroes, its protection is certainly not limited to them.” See Yick Wo v. Hopkins, 118 U.S. 356 (1886). Moreover, he quoted Justice Miller’s opinion for the Supreme Court in The Slaughter House Cases to the effect that if “Mexican peonage or the Chinese coolie labor system” in U.S. territory evolved into a variety of slavery, then the Thirteenth Amendment would outlaw it. And, Miller had continued, “if other rights are assailed by the States which properly and necessarily fall within the protection of [the Reconstruction Amendments], that protection will apply, though the party interested may not be of African descent.” See The Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873), 72.
138. Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970). See Greenfield and Kates, Jr., “Mexican Americans, Racial Discrimination, and the Civil Rights Act of 1866,” 662.
139. Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 605, n. 28.
140. Ibid., 606-7.
141. Ibid., 607. Seals noted that the myriad Mexican American organizations, “such as LULAC and the G.I. Forum, and now MAYO, were called into being in response to this problem,” and that “young Mexican-Americans have recently begun to call themselves Chicanoes [sic], and their movement, La Roza [sic]. During the pendency of this suit, these Chicanoes [sic] have been trying to get La Roza [sic] on the Texas ballot as La Roza [sic] Unida Party.” Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 615, esp. n. 39. For the creation of the La Raza Unida Party, see Gómez-Quiñones, Chicano Politics: Reality and Promise, 158-59.
142. Ibid., 608, n. 34. Judge Seals took “judicial notice” of the 1960 U.S. Census of Population and a special study by the Bureau of the Census, entitled “Persons of Spanish Surname,” which was based on the 1960 Census. See Cisneros v. Corpus Christi ISD, 608, nn. 31, 33.
143. Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 615-16.
144. Ibid., 616-17, esp. n. 48.
145. Ibid., 617-20, see esp. nn. 50-57. For this “calculated” segregation, see also Rangel and Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” 326.
146. Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970), 620, and n. 58.
147. Ibid., 627.
148. Keyes v. School District Number One, Denver, 413 U.S. 189 (1973), 198. For the refusal to review Cisneros, see 413 U.S. 920 (1973). San Miguel, Jr., “Let All of Them Take Heed,” 180-81.
149. This story is taken up in Guadalupe San Miguel, Jr., Brown, Not White: School Integration and the Chicano Movement in Houston (College Station: Texas A&M University Press/Center for Mexican American Studies at University of Houston, 2001). See also Salinas, “Mexican-Americans and the Desegregation of Schools in the Southwest,” 951.
150. Patterson, Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy, xiv, xxvii-xxix.
151. Derrick A. Bell, Jr., “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review 93 (1980): 518.
152. See Harvard Sitkoff, The Struggle for Black Equality, 1954-1980 (New York: Hill and Wang, 1981), 44-48.
153. Matt S. Meier and Feliciano Ribera, Mexican Americans/American Mexicans: From Conquistadors to Chicanos (New York: Hill and Wang, 1993; rev. ed. of The Chicanos, 1972), 211. See also Montejano, Anglos and Mexicans in the Making of Texas, 262-87; Walter El-wood Smith, Jr., “Mexicano Resistance to Schooled Ethnicity: Ethnic Student Power in South Texas, 1930-1970” (Ph.D. diss., University of Texas at Austin, 1978), 288-97; and U.S. Commission on Civil Rights, Mexican-American Educational Study, Report I: Ethnic Isolation of Mexican-Americans in the Public Schools of the Southwest (Washington, D.C.: U.S. Commission on Civil Rights, 1970), 26.
154. Navarro, Mexican American Youth Organization, 80-87.
155. Ibid., 157-58. In its early years, MALDEF also accepted minor claims of the “legal aid” variety, concerning minor disputes, which did not actually require legal counsel. O’Connor and Epstein suggest that, despite some victories, MALDEF was not an effective constitutional litigator until at least 1973; moreover, even then, it lost more often than it won. O’Connor and Epstein, “A Legal Voice for the Chicano Community,” 285.
156. Rubén Donato, The Other Struggle for Equal Schools: Mexican Americans in the Civil Rights Era (Albany: State University of New York Press, 1997), 12.
157. The next year, President Jimmy Carter elevated Garza–after Garza declined an offer to become U.S. attorney general–to the Fifth Circuit, where he became the first Mexican American on that influential appellate court. Judge Garza had been chief judge of the Southern District since 1975. See Fisch, All Rise, 151-52. Mexican Americans were lobbying for more judges that represented their minority group. See “5 Groups Demanding 2 Spanish-named Judges in West Texas District,” Houston Post, 19 July 1979, 7A. Judge Garza’s replacement was Filemon B. Vela, the third Mexican American to serve in the Southern District. Vela was born 1 May 1935 in Harlingen, Texas. After serving as a U.S. Army private from 1957 to 1959, he attended law school at St. Mary’s University in San Antonio, where he earned his J.D. in 1962. He briefly entered private practice in Harlingen, then moved to Brownsville in 1963. Vela served there as a city commissioner in the early 1970s. In 1975 he became a state judge for Cameron and Willacy Counties, in the 107th District. He was still there when the president appointed him to Garza’s old seat in Brownsville, which he assumed on 18 June 1980. “Vela,” in Judges of the United States.
By: Steven H. Wilson