Remember Hernandez

Rememberig Hernandez

BY JOSE VELA

Mexican Americans and the Law: ¡El pueblo unido jamás será vencido! By Reynaldo Anaya Valencia, Sonia R. Garcia, Henry Flores, and José Roberto Juárez Jr. University of Arizona Press 197 pages, $15.95

or too many Americans, the history of the struggle for civil rights begins in 1954 with Brown v. Board of Education and ends in 1968 with the assassination of Dr. Martin Luther King. As important and defining as these events are, the true history spans hundreds of years and involves virtually every ethnic, racial, political, and religious group in the country. Yet ask about the role of Mexican Americans in the civil rights movement and most people—even most Mexican Americans—will look back at you with a blank stare or a shrug of their shoulders. A quartet of professors from St. Mary’s University in San Antonio attempts to change that with Mexican Americans and the Law: ¡El pueblo unido jamás será vencido! They begin with a discussion of the U.S.-Mexican War and the Treaty of Guadalupe Hidalgo. Through the Treaty, the Mexican government sought to preserve the rights of its citizens who lived in territories that were now under U.S. control. Mexico negotiated promises from the Americans that guaranteed Mexicans in the United States the same political, property, and religious rights enjoyed by U.S. citizens. Unfortunately, the U.S. government never enforced the Treaty, and its promises of legal protections for Mexicans were never realized. As the authors write, “The early history of the relationship between Mexican Americans and the legal system chronicles abuse and violence at the hands of law enforcement agencies and the courts.” Some of the most severe abuses took place right here in Texas. But the state’s history of racism and discrimination also produced many of the nation’s leading civil rights organizations—including the League of United Latin American Citizens (LULAC), American G.I. Forum, and the Mexican American Legal Defense and Educational Fund (MALDEF). The landmark 1954 decision Hernandez v. Texas, the major case involving Mexican Americans and jury selection, also marked the first time that Mexican American attorneys argued before the Supreme Court. In 1952 an all-white jury in Jackson County, Texas, convicted a migrant cotton farmer named Pete Hernandez of the murder of Joe Espinosa. Although the population of Jackson County was nearly 25 percent Mexican American, no one with a Latino last name had served on a served on a jury in 25 years. As the authors point out, the relationship between Mexican Americans and the U.S. legal system was complicated because the United States had only two racial classifications: colored and white. Before the courts could determine what rights Mexican Americans possessed, they first had to answer a central question: Were they colored or white? In Hernandez, the U.S. Supreme Court answered by deciding that Mexicans were neither black nor white—they were Mexican! They were recognized as a distinct group that could be protected by the U.S. Constitution.

When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a “two-class” theory—that is, based upon differences between “white” and Negro.

No single issue has ignited the Mexican American community as much as education. Texas’ dysfunctional public school system has been a frequent target of those legal efforts. In San Antonio Independent School District v. Rodriguez, Mexican American parents sued to declare the state’s system of funding public schools unconstitutional, arguing that education was a right guaranteed by the U.S. Constitution. The Supreme Court disagreed, rejecting both the idea that education is a fundamental right and that educational funding based on local wealth is unconstitutionally discriminatory, despite the huge inequities it produced. In Plyler v. Doe, Texas public school policy was once again before the U.S. Supreme Court after the legislature passed a law denying education to children who were undocumented immigrants. This time the Supreme Court struck down the law, stating:

Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same force to classifications imposing disabilities on the minor children of such illegal entrants. Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.

The 1973 Rodriguez decision was a major defeat for Mexican American legal activists. A victory would have enshrined education as a constitutional right and, combined with the equal protection clause, mandated some level of educational equality throughout the nation. With the loss in Rodriguez, the fight for an equal education for all children turned to the state and local level, where it continues today. Although the Supreme Court was not ready to declare education to be a constitutional right, the 1982 Plyler decision showed that the Court was equally uncomfortable with a state explicitly denying education to a particular group of children. What balance was the Court attempting to strike? The answer may lie in the difficulties the nation encountered in trying to implement Brown v. Board’s promise of an integrated public school system. In addition to the explicit, violent resistance that school integration faced in the South, was the quiet opposition it faced throughout much of the rest of the nation. Faced with sending their children to newly integrated schools, many white parents simply sent their children to private schools or moved to suburban enclaves unaffected by integration. Because of these trends, today’s schools are virtually as segregated as they were in 1954. (Actually, they are more segregated according Gary Orfield, co-director of the Civil Rights Project at Harvard and co-author of a pathbreaking 1997 book Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education). In the aftermath of Brown v. Board, legal activists discovered that it is much easier to achieve a legal victory than it is to actually implement it. The Plyler and Rodriguez decisions show that the modern Supreme Court is a more pragmatic institution, content to strike down laws that offend its legal conscience yet unwilling to pursue the greater vision embodied in the American Constitution. Reading through the book, it is striking to see how divided the Court has become as it continues to wrestle with the legal and social issues that come before it. In older civil rights cases such as Hernandez v. Texas and Brown v. Board of Education, it rendered unanimous opinions that were clear and unequivocal in their reasoning. Rarely does the Supreme Court render a 9-0 decision in a major civil rights case any more, and often its decisions are uncertain and unclear. In Plyler v. Doe, the decision was 5-4, with the five justices in the majority unable to agree why what Texas did was unconstitutional. San Antonio Independent School District v. Rodriguez was another 5-4 decision. The nine justices wrote five separate opinions, with no single opinion garnering the support of a majority. The Supreme Court’s recent 5-4 decision in Grutter v. Bollinger, reaffirming the constitutionality of affirmative action, continues the trend of close decisions in major civil rights cases. ne of the strengths of this book is that the authors allow the justices to speak for themselves by including their actual opinions. By keeping their commentary and criticism to a minimum, the authors focus the reader’s attention on the legal analysis of the court. When they do comment, it is usually to highlight the importance of a decision or to place it in its proper historical and legal context. While it is clear from the commentary that the authors are intimately involved in many of the issues they canvas, they manage to keep the tone balanced. The primary intended use of Mexican Americans and the Law is as an undergraduate textbook, with each chapter covering a specific issue, such as immigration, educational equality, voting rights, and affirmative action. Discussion questions and suggested readings are at the end of every chapter. As Texas’ universities struggle to adapt to the state’s changing demographics, the book could not have been published at a better time. Moreover it serves as a point of departure for any discussion of the seemingly endless battle to provide a decent education to all children in this state. Jose Vela grew up in Laredo and is a recent graduate of the University of Texas School of Law.