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 minority.

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 elites.

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 organizations.

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 public education.

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 with them?

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?

Answer: (silence)

[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 segregated.

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.