Margaret E. Montoya
Excerpted from: Margaret E. Montoya, A Brief History
of Chicana/o School Segregation: One Rationale For Affirmative Action,
12 La Raza Law Journal 159-172, 162-171 (2001) (66 footnotes)
In order to understand the complexity of the ways in which
educational opportunities were limited for Mexican/Mexican-American
children throughout the Southwest, it is necessary to remember that
Mexicans/Mexican Americans were racially classified as White. Having the
Mexican mestizo/a accepted as White was a legal strategy that was
pursued by Chicano lawyers and their clients up to the 1970s. In 1954,
the U.S. Supreme Court held, in Hernandez v. Texas, that Mexican
Americans were protected by the Fourteenth Amendment but limited its
holding to the facts of the case rather than reaching the broader
question of whether the group constituted an identifiable ethnic
Various forms of de facto segregation of schools were practiced
throughout the Southwestern states. It was, however, most entrenched in
California and Texas and less widespread in New Mexico, where
established Hispano families were educated side by side with Anglo
Christopher Arriola described the social separation of Anglos and
Mexicans in El Modena, California, the setting for one of the leading
cases on segregation:
It was more common than not during the 1920s for southern
California towns to be segregated. Segregation in the citrus society
encompassed many harsh and unjust realities, from segregated housing
and public places, to inferior social status and political and
economic exploitation. Mexicans and Anglos lived in truly separate
worlds. According to historian Charles Wollenberg, ' segregation was
the rule wherever Mexicans reside in sizable colonies,' and it was a
reality, 'from cradle to grave.'
This type of segregation was institutional and was visible in all
aspects of daily life. Two common examples of segregation were the movie
theaters in the larger towns and the swimming pools in almost every
community. The five theaters in downtown Santa Ana were segregated.
Oscar Valencia remembered that, 'the bottom [the main floor of the
theater] was for the Americans, the top [balcony] was for the Mexicans.
They had all kinds of segregation.' The ' plunge,' as the swimming pool
in nearby Orange was called, had a 'Mexican Day' on Mondays. It was the
only day Mexicans were allowed to swim. The pool was drained that night
and was closed on Tuesday for cleaning and re-filling.
Many organizations, businesses, and homeowners associations had
official policies to exclude Mexicans, but in many other instances it
was more of a general social understanding among Anglos that Mexicans
should be excluded. . . .
Such prejudices lead to the establishment of a separate 'barrio'
consisting of the downtown area of old El Modena. The town became two
separate worlds in one place. Mexicans were sold 'miserable little
houses' on cheap lots in the center of town 'for a good profit,'
according to a long time resident. Anglos left the downtown area as more
and more Mexicans arrived until the town was virtually all Mexican. Most
Anglos in the community lived in small family- owned or rented citrus or
walnut ranches in the plots adjacent to the town. El Modena had
developed a doughnut shaped segregation. The Mexican community resided
in the middle, clustered into the town, and the Anglos surrounded them
living dispersed on the various nearby farms.
The separation went beyond the type and location of the houses.
Mexicans and Anglos lead separate lives. They went to different
churches, Anglos attending the Friends Church on the main street of
Chapman, while Mexicans attended makeshift Catholic services in each
other's homes until the first Catholic church was established. Mexicans
had a different cultural life. The Mexican/Chicano community in El
Modena brought in 'teatro' groups from Mexico, had their own dances, ran
their own restaurants and small stores, and organized mutual aid
societies which sponsored both Mexican and American patriotic
In their outstanding study of school segregation in Texas, Jorge
Rangel and Carlos Alcala noted that "[it was n]ot until 1930 [that
the provision in the state constitution allowing separate schools 'for
the white and colored children' was] held not to authorize segregation
of Mexican Americans." In a 1930 case, Independent School District
v. Salvatierra, the Texas Court of Civil Appeals agreed with the trial
court that "school authorities have no power to arbitrarily
segregate Mexican children, assignthem to separate schools, and exclude
them from schools maintained for children of other white races, merely
or solely because they are Mexicans." Even so, the appellate court
dissolved the injunction prohibiting segregation because there was no
proof of intent to discriminate. It was within the "pedagogical
wisdom" of the educators to separate children with language
problems. This became a pattern throughout the Southwest: Chicanos/as
were placed in segregated schools with no explicit constitutional,
statutory or regulatory authority. Consequently, fashioning legal
remedies for this discrimination using theories of either de jure or de
facto segregation would prove next to impossible.
The situation in California is illustrative, although it is important
to emphasize that each of the states had variations that depended on the
importance of Mexicans/Mexican-Americans to the local economy. Unlike
"Negroes, Mongolians and Indians" who were prohibited from
admission to the regular public schools, Mexicans were never
specifically mentioned in the Education Code of California. However, by
the 1920's they were by far the most segregated group in California
The first instance of court-ordered desegregation occurred in Lemon
Grove, California in Alvarez v. Owen. A website maintained on the
Mexican and Chicano History of San Diego describes the dispute:
On July 23, 1930 the Lemon Grove school board began to discuss what
to do with the more than 75 Mexican students who were attending the
local grammar school. It was decided to build a separate school for them
but no notice was given to the parents of the Mexicano students.
On January 5, 1931 the principal of the Lemon Grove Grammar School,
Jerome T. Greene stood a the door of the school and directed the
incoming Mexican students to go to the new school building, a wooden
structure that came to be call "La Caballeriza," (the barn).
Instead the students returned home and thereafter the parents refused to
send their children to the separate school. . . . [Enrique Ferreira, the
Mexican consul,] put the parents in touch with Fred C. Noon and A.C.
Brinkley, two lawyers who had worked for the consul in the past and from
there they filed a writ of mandate to prevent the school board from
forcing their children to attend the segregated school. They chose a
student, Roberto Alvarez, to be the plaintiff in the class action suit.
. . .
On February 24, 1931 Judge Claude Chambers began hearing the case.
Fred Noon. . .called ten witnesses to the stand to challenge the school
board's contention that the Mexican children were educationally
backward. Most of the students had been born in the United States and
spoke English. At least one student spoke no Spanish at all. In the
interrogatory Judge Chambers revealed the injustice of the differential
treatment of Mexican students.
Judge When there are American children who are behind, what do you do
Answer: They are kept in a lower grade.
Judge You don't segregate them? Why not do the same with the other
children? Wouldn't the association of American and Mexican children be
favorable to the learning of English for these children?
[Judge Chambers] ruled against the Lemon Grove school district and
ordered them to reinstate the children in the regular school. The Court
concluded that Mexicans were neither Negroes nor Indians (nor
Mongolians, the other category segregated under the California Education
Code) and their segregation was therefore unlawful.
In 1976, Charles Wollenberg wrote a dissertation that was to be
published as a book called All Deliberate Speed: Segregation and
Exclusion in California Schools, 1855-1975. In it, he describes the
actions taken by school boards throughout California to segregate Black,
Japanese, Chinese, Indian and Mexican/Mexican-American children.
The end of World War II brought renewed protests against school
segregation by Mexican-American parents (partly, Dr. Wollenberg
explains, because racism had attached itself to Hitler and the Nazis).
By 1945, pressure was brought to bear on the school boards in Ontario,
Mendota, Riverside, and San Bernardino. In Westminster, several parents
including Gonzalo Mendez wanted a bond issue passed for the construction
of a new integrated school. The school board proposed it but the voters
turned it down.
On March 2, 1945, five fathers--Gonzalo Mendez, Thomas Estrada,
William Guzman, Frank Palomino, and Lorenzo Ramirez--sued the
Westminster, Garden Grove, Santa Ana and El Modeno school districts of
Orange County, claiming that their children were the victims of
unconstitutional discrimination. This lawsuit was to bring an end to de
jure segregation in California schools. The irony was that the lawsuit
was brought and won by Mexican Americans who had not been explicitly
David Marcus, the attorney in the Mendez case, sued in federal court
alleging that the four school districts maintained elementary schools
with 100 percent Mexican/Mexican-American enrollment and that this
violated the Fifth and Fourteenth Amendment rights of the children of
"Mexican and Latin descent." The school board defended by
arguing first that the federal courts had no jurisdiction in the case
because education was a state matter. Second, the school board argued
that the students were separated not because of race or nationality but
because they lacked English-language skills and American values and
culture. Finally, the school board "pointed out" that the
principle of "separate but equal" was the law of the land.
On February 18, 1946, Judge Paul J. McCormick concluded that the
Plessy v. Ferguson precedent was inapposite because the California code
did not provide for the establishment of "Mexican" schools.
Therefore, their establishment was arbitrary action taken without
"due process of law," raising an issue under the Fourteenth
Amendment and conferring jurisdiction on the Court. Judge McCormick
rejected the educational rationalizations for the separate schools,
concluding that language difficulties would not warrant segregating
children through the eighth grade. Judge McCormick also rejected
arguments that the children were intellectually inferior and heralded
the notion that integration would instill "a common cultural
attitude among the school children which is imperative for the
perpetuation of American institutions and ideals."
On December 10, 1946, Joel Ogle filed his appeal with the U.S. Court
of Appeals for the Ninth Circuit in San Francisco. Amicus briefs were
filed by the American Civil Liberties Union, the National Lawyers Guild,
the American Jewish Congress, and the Japanese American Citizens League.
Thurgood Marshall and Robert Carter wrote the brief for the National
Association for the Advancement of Colored People asking the Court to
strike down the "separate but equal" doctrine.
Dr. Wollenberg describes that during the oral argument, when Marcus
noted that virtually all children with Spanish surnames were segregated
within the Orange County schools, Judge William Denton asked what would
happen to a child named O'Shaughnessy who was "five-sixths
Spanish." Marcus assured the judge that he too would be segregated
because the districts used appearance as well as family name.
On April 14, 1947, the seven judges of the Court of Appeals
unanimously affirmed the lower court's decision. But Judge Albert Lee
Stevens' opinion refused to rule on the issue of "separate but
equal." Mr. Arriola described the decision by the Ninth Circuit:
The Ninth Circuit upheld the District Court opinion on the grounds
that the plaintiffs' Fourteenth Amendment rights had been violated by
segregation, because no California law allowed the school boards to
segregate Mexican school children. The segregation constituted unequal
enforcement of the law. The segregation was not based on race
discrimination, but rather was based on class discrimination against
Mexican-American children. In fact, the court refused to confront the
race issue and quickly sidestepped it. The Court never ruled on whether
Mexicans are a group, an ethnicity, or a race, merely stating that
Mexican American school children had been discriminated against and
their Fourteenth Amendment rights had been violated.
The Ninth Circuit, at this time, was not willing to take a chance and
rule that separate was always unequal, even though the opportunity was
presented to them by the District Court. They were, however, repulsed by
the actions of the school boards, and sufficiently frightened by the
amicus briefs of the AJC regarding the slippery slope of social
classifications, to take the necessary actions to end segregation in the
schools. The Court's ruling was insufficient to overturn a significant
corpus of segregation precedent, let alone Plessy. Nonetheless, this
case was of great importance for Chicanas/os because it paved the way
for litigation in Texas and Arizona, challenging segregation schemes, as
well as for other populations of color by helping to develop the
arguments for Brown v. Board of Education .
In 1977, the UCLA Chicano Studies Center published a monograph by
Carlos Manuel Haro detailing the struggles of the Chicano/a communities
to desegregate the Los Angeles schools. Mr. Haro described the winding
path that the cases would take. In August 1963, Crawford v. Board of
Education of the City of Los Angeles was filed, thus beginning
litigation that was to culminate in sixty-five court days that filled
sixty-two volumes of trial transcripts. Seven years later, in May 1970,
Judge Alfred Gitleson held that the Los Angeles Unified School District
was substantially segregated. The Supreme Court affirmed the decision
and remanded the case for further proceedings. The Court disagreed with
Judge Gitleson that the state constitution required racial or ethnic
balancing. Instead, the Supreme Court held that the harm to minority
children did not "turn on whether the segregation [was] of de facto
or de jure character; it [was] the presenceof racial isolation, not its
legal underpinnings, that created unequal education."
Although Mary Ellen Crawford was an African-American child, some
plaintiffs were also Chicanos/as. In trying to come up with an agreement
that included Chicanos/as, Judge Egly, the judge who presided over the
desegregation hearings, suggested eliminating the assimilated or
mainstreamed Hispanics for those he called "the deprived
minority." The issues of desegregating school systems with
significant numbers of Black, White and Chicana/o students would present
themselves in other high-profile cases, most notably the case involving
the Denver school system.
It was not until 1970 in Cisneros v. Corpus Christi Independent
School District, that Mexican Americans were held to be "an
identifiable ethnic minority group" for the purpose of school
desegregation. Thus, Mexican Americans were finally afforded the same
protection as Blacks under the Brown case. In Houston, Texas, the school
board responded to desegregation by pairing Black and Chicano/a
children. In the ensuing lawsuit, Ross v. Eckels, Judge Ben Connally
asserted that Houston, and indeed all of Texas, had "always treated
Latin-Americans as of the Anglo or White race." Judge Connelly
opined as follows,
Content to be "White" for these many years, now, when the
shoe begins to pinch, the would-be Intervenors wish to be treated not as
Whites but as an "identifiable minority group." In short, they
wish to be "integrated" with Whites, not Blacks.
Finally, the Supreme Court took up this issue of whether Chicanas/os
are a "suspect" class such that they are entitled to
protection under the equal protection clause of the Fourteenth
Amendment. In Keyes v. School District No. 1, the Denver case, the
Supreme Court posited that "though of different origins, Negroes
and Hispanics in Denver suffer identical discrimination in treatment
when compared with the treatment accorded Anglo students." The
Denver case was brought by Black plaintiffs and the issue of Chicano/a
segregation was not introduced until the remedy phase when Chicanos/as
successfully intervened. The Intervenors, the Congress of Hispanic
Educators, proposed a plan to require a bilingual/bicultural program for
Spanish-surnamed students. This proposal was accepted by the District
Court but later rejected by the Tenth Circuit. The Keyes case lasted in
continuous litigation for thirty years from 1968 until 1997, when the
Tenth Circuit approved the declaration by the District Court that the
school system had achieved unitary status.