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Brown over “Other White”: Mexican Americans' Legal Arguments and Litigation Strategy in School Desegregation Lawsuits

Published online by Cambridge University Press:  28 October 2011

Steven H. Wilson
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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. 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.

Type
Forum: Whiteness and Others: Mexican Americans and American Law
Information
Law and History Review , Volume 21 , Issue 1 , Spring 2003 , pp. 145 - 194
Copyright
Copyright © the American Society for Legal History, Inc. 2003

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References

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.” Chayes, Abram, “The Role of the Judge in Public Law Litigation,” Harvard Law Review 89 (1976): 1282–86.CrossRefGoogle Scholar

2. Advocates of women's rights initiated their own campaign of “public law litigation” in the 1970s. See O'Connor, Karen, Women's Organizations' Use of the Courts (Lexington: Lexington Books, 1980)Google Scholar; and Susan Mezey, Gluck, In Pursuit of Equality: Women, Public Policy, and the Federal Courts (New York: St. Martin's Press, 1992).Google Scholar A similar pattern led to suits by other disenfranchised groups, such as criminal defendants, prison inmates, and mental patients. See Cooper, Phillip J., Hard Judicial Choices: Federal District Court Judges and State and Local Officials (New York: Oxford University Press, 1988).Google Scholar

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 López, Ian F. Haney, White by Law: The Legal Construction of Race (New York: New York University Press, 1996), xiv.Google Scholar

4. See Rangel, Jorge C. and Alcala, Carlos M., “Project Report: De Jure Segregation of Chicanos in Texas Schools,” Harvard Civil Rights-Civil Liberties Law Review 7 (1972): 331–33, 342–43Google Scholar, esp. n. 216, and 348–9; Birnberg, Gerald M., “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): 339Google Scholar; and Salinas, Guadalupe, “Comment: Mexican-Americans and the Desegregation of Schools in the Southwest,” Houston Law Review 8 (1971): 939.Google Scholar

5. Tushnet, Mark V., The NAACP's Legal Strategy against Segregated Education, 1925–1950 (Chapel Hill: University of North Carolina Press, 1987), xi.CrossRefGoogle Scholar

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 Boiling v. Sharpe, 347 U.S. 497 (1954), the latter declaring segregated public schools in the District of Columbia to be unconstitutional. See Kluger, Richard, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Vintage Books, 1975)Google Scholar; and Greenberg, Jack, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (New York: Basic Books, 1994).Google Scholar

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: Uhni Books of the University of Illinois Press, 1971).

8. Patterson, James T., Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy (New York: Oxford University Press, 2001), xxvii–xxix.Google Scholar 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. Browder, 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. Martinez, George A., “Legal Indeterminacy, Judicial Discretion and the Mexican-American Litigation Experience; 1930–1980,” University of California at Davis Law Review 27 (1994): 555.Google Scholar

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 Ngai, Mae M., “The Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 1924,” Journal of American History 86 (1999): 67.CrossRefGoogle Scholar

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.Google Scholar For one Houston firm's record of hiring—or of not hiring—lawyers of Hispanic descent, see Hyman, Harold M., Craftsmanship and Character: A History of the Vinson & Elkins Law Firm of Houston, 1917–1997 (Athens: University of Georgia Press, 1998), 412.Google Scholar

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 Gammel, H. P. N., compiler, The Laws of Texas, 1822–1897 (Austin: H. P. N. Gammel Book Company, 1898), 10:616.Google Scholar The Texas Legislature reenacted the statute, including its definition of “colored children,” by the Act of April 1905, 29th Legislature, p. 263, sees. 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 Jenkins, C. H., The Revised Civil Statutes of Texas, 1925, Annotated (Austin: H. P. N. Gammel Book Co., 1925), 1:1036.Google Scholar

16. Gómez-Quiñones, Juan, Roots of Chicane Politics, 1600–1940 (Albuquerque: University of New Mexico Press, 1994), 360–61.Google Scholar Also see Gutiérrez, David G., Walls and Mirrors: Mexican Americans, Mexican Immigrants, and the Politics of Ethnicity (Berkeley: University of California Press, 1995), 53.Google Scholar 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. James Davis, F., Who Is Black? One Nation's Definition (University Park: Pennsylvania State University Press, 1991), 114–15Google Scholar, and generally.

17. Montejano, David, Anglos and Mexicans in the Making of Texas, 1836–1986 (Austin: University of Texas Press, 1987).Google Scholar 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 Foley, Neil, The White Scourge: Mexicans, Blacks, and Poor Whites in Texas Cotton Culture (Berkeley: University of California Press, 1997), 1–12.Google Scholar 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 Rights, Civil, Mexican Americans and the Administration of Justice in the Southwest: Summary (Washington, D.C.: U.S. Government Printing Office, 1970), 2Google Scholar, 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. López, Ian F. Haney, “Race, Ethnicity, Erasure: The Salience of Race to Lat Crit Theory,” California Law Review 85 (1997): 1148CrossRefGoogle Scholar, 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.” McClymer, John F., “The Americanization Movement and the Education of the Foreign-Born Adult, 1914–1925,” in American Education and the European Immigrant, 1840–1940, ed. Weiss, Bernard H. (Urbana: University of Illinois Press, 1982), 105.Google Scholar

26. See Ramos, Henry A. J., The American G.I. Forum: In Pursuit of the Dream, 1948–1983 (Houston: Arte Público Press, 1998)Google Scholar; and Allsup, Carl, The American G.I. Forum: Origins and Evolution (Austin: Center for Mexican American Studies, 1982).Google Scholar

27. Miguel, Guadalupe San 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.Google Scholar

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 omer 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 Chicane 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. Glenn, Charles L. with de Jong, Esther J., Educating Immigrant Children: Schools and Language Minorities in Twelve Nations (New York: Garland Publishing, 1996), 338.Google Scholar

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 Kemerer, Frank R., William Wayne Justice: A Judicial Biography (Austin: University of Texas Press, 1991)Google Scholar, 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. Wasby, Stephen L., Race Relations in an Age of Complexity (Charlottesville: University Press of Virginia, 1995), 123–24.Google Scholar

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. Woods, L. A., “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.Google Scholar

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 flies 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 Tidwell, Patricia A., “James V. Allred of Texas: A Judicial Biography” (M.A. Thesis, Rice University, 1991).Google Scholar Also see Zelden, Charles L., 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.Google ScholarHernandez 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. DriscolF” [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. 545–16.

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; Miguel, Guadalupe San Jr, “Mexican American Organizations and the Changing Politics of School Desegregation in Texas, 1945–1980,” Social Science Quarterly 63 (1982): 708–9.Google Scholar

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,” 347–18, including nn. 241–15.

89. For these events, see Garcia, Ignacio M., Viva Kennedy: Mexican Americans in Search of Camelot (College Station: Texas A&M University Press, 2000)Google Scholar; and Gilberto Quezada, J., Border Boss: Manuel B. Bravo and Zapata County (College Station: Texas A&M University Press, 1999).Google Scholar

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. Davidson, Chandler, Race and Class in Texas Politics (Princeton: Princeton University Press, 1990), 29–32, 166.Google Scholar

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 Fisch, Louise Ann, All Rise: Reynaldo G. Garza, the First Mexican American Federal Judge (College Station: Texas A&M University Press, 1996), 70–77.Google Scholar 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. Pycior, Julie Leininger, LB J and Mexican Americans: The Paradox of Power (Austin: University of Texas Press, 1997), 116–24.Google Scholar 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 Medina, Harold R., The Anatomy of Freedom, ed. Walter Barrett, C. (New York: Henry Holy and Co., 1959)Google Scholar, 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; Goldman, Sheldon, Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan (New Haven: Yale University Press, 1997), 196Google Scholar, n. kk.

93. Navarro, Armando, The Cristal Experiment: A Chicane Struggle for Community Control (Madison: University of Wisconsin Press, 1998), 17–51.Google Scholar For political developments in the same city after the Chicano movement emerged, see ibid.; Trujillo, Armando L., Chicano Empowerment and Bilingual Education: Movimiento Politics in Crystal City, Texas (New York: Garland Publishing, 1998)Google Scholar; and Montejano, Anglos and Mexicans in the Making of Texas, 282–84.

94. Servín, Manuel P., “The Post-World War II Mexican-American, 1945–1965: A Non-Achieving Minority,” in The Mexican-Americans: An Awakening Minority, ed. Servín, Manuel P. (Beverly Hills: Glencoe Press, 1970), 144.Google Scholar See “Latin Leaders Walk Out on U.S.,” Texas Observer, 15 April 1966, 5. Gómez-Quiñones, Juan, Chicano Politics: Reality and Promise, 1940–1990 (Albuquerque: University of New Mexico Press, 1990), 106–8.Google Scholar 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 Barbaro, Fred, “Ethnic Resentment,” in Black/Brown/White Relations: Race Relations in the 1970s, ed. Willie, Charles V. (New Brunswick: Transaction Books, 1977), 77–79.Google Scholar

95. Rowan, Helen, “A Minority Nobody Knows,” in Mexican Americans in the United States: A Reader, ed. Burma, John H. (Cambridge: Schenkman Publishing, 1978), 29.Google Scholar

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. Navarro, Armando, Mexican American Youth Organization: Avant-Garde of the Chicane Movement in Texas (Austin: University of Texas Press, 1995), 22–36Google Scholar; Gómez-Quiñones, Chicane 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, Chicane Politics: Reality and Promise, 118–19; Garcia, Ignacio M., Chicanismo: The Forging of a Militant Ethos among Mexican-Americans (Tuscon: University of Arizona Press, 1997), 1–4Google Scholar; and Rendón, Armando B., Chicane Manifesto: The History and Aspirations of the Second Largest Minority in America (Berkeley: Ollin and Associates, 1996; first published, 1971), 200–202.Google Scholar For a discussion of the generational issues that led to the rise of the Chicano challenge to the “Mexican American Generation,” see Gutiérrez, Armando and Hirsch, Herbert, “The Militant Challenge to the American Ethos: ‘Chicanos’ and ‘Mexican Americans,’” in La Causa Politica: A Chicane Politics Reader, ed. Chris Garcia, F. (Notre Dame: University of Notre Dame Press, 1974), 86–103Google Scholar; Garcia, Mario T., Mexican Americans: Leadership, Ideology, and Identity, 1930–1960 (New Haven: Yale University Press, 1989), 13–22Google Scholar; and Munoz, Carlos, Youth, Identity, Power: The Chicane Movement (New York: Verso, 1989).Google Scholar

100. Navarre, 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. Moquin, Wayne with Doren, Charles Van (New York: Praeger, 1971), 358.Google Scholar

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 11 (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.Google Scholar

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.Google Scholar 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 Gl 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 O'Connor, Karen and Epstein, Lee, “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. De La Garza, Rodolfo O., Bean, Frank D., Bonjean, Charles M., Romo, Ricardo, and Alvarez, Rodolfo (Austin: University of Texas Press, 1985), 284–85Google Scholar; 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.Google Scholar 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 Levin, Betsy and Moise, Philip, “School Desegregation Litigation in the Seventies and the Use of Social Science Evidence: An Annotated Guide,” Law and Contemporary Problems 39 (1975): 76–80.CrossRefGoogle Scholar

115. See Rangel and Alcala, “Project Report: De Jure Segregation of Chicanos in Texas Schools,” 342, 359. See Greenfield, Gary A. and Kates, Don B. Jr, “Mexican Americans, Racial Discrimination, and the Civil Rights Act of 1866,” California Law Review 63 (1975): 662, 682.CrossRefGoogle Scholar 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 Gozansky, Nathaniel E., Gignilliat, Kenneth, and Horwitz, William, “School Desegregation in the Fifth Circuit,” Houston Law Review 5 (1968): 946–66.Google Scholar

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.Google Scholar 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.Google Scholar 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.Google Scholar 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 Odern school districts. He recruited other reform-minded 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 Bailey, Richard, “The Stan-County Strike,” Red River Valley Historical Review 4 (1979): 47–48.Google Scholar 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; Cimeros 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 Delgado, Richard and Palacios, Victoria, “Mexican-Americans as a Legally Cognizable Class Under Rule 23 and the Equal Protection Clause,” Notre Dame Law Review 50 (1975): 393.Google Scholar

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 Miguel, Guadalupe San Jr, Brown, Not White: School Inte-gration and the Chicane Movement in Houston (College Station: Texas A&M University Press/Center for Mexican American Studies at University of Houston, 2001).Google Scholar 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. Bell, Derrick A. Jr, “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review 93 (1980): 518.CrossRefGoogle Scholar

152. See Sitkoff, Harvard, The Struggle for Black Equality, 1954–1980 (New York: Hill and Wang, 1981), 44–18.Google Scholar

153. Meier, Matt S. and Ribera, Feliciano, Mexican Americans/American Mexicans: From Conquistadors to Chicanos (New York: Hill and Wang, 1993; rev. ed. of The Chicanos, 1972), 211.Google Scholar See also Montejano, Anglos and Mexicans in the Making of Texas, 262–87; Smith, Walter Elwood Jr, “Mexicano Resistance to Schooled Ethnicity: Ethnic Student Power in South Texas, 1930–1970” (Ph.D. diss., University of Texas at Austin, 1978), 288–97Google Scholar; and U.S. Commission on Civil Rights, Mexican-American Educational Study, Report 1: Ethnic Isolation of Mexican-Americans in the Public Schools of the Southwest (Washington, D.C.: U.S. Commission on Civil Rights, 1970), 26.Google Scholar

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. Donato, Rubén, The Other Struggle for Equal Schools: Mexican Americans in the Civil Rights Era (Albany: State University of New York Press, 1997), 12.Google Scholar

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.