LAST YEAR WE CELEBRATED THE

3 0 This article first appeared in Orange County Lawyer magazine in February 2005, Vol. 47 No. 2 (page 30). Copyright 2009 Orange County Bar Association. The views expressed herein are those of the author(s). They do not necessarily represent the views of the Orange County Lawyer magazine, the Orange County Bar Association or its staff. All legal and other issues should be independently researched. by The Hon. Frederick P. Aguirre LAST YEAR WE CELEBRATED THE 50th anniversary of Brown v. Board of E d u c a t i o n, 347 U.S. 483, 494 (1954), undoubtedly the most important civil rights case of the last century. Chief Justice Earl Warren, writing for a unanimous United States Supreme Court, fervently stated that separate educational facilities are inherently unequal, eventually ordering that all public schools of our nation integrate their classrooms with all deliberate speed. Over the last half century, B r o w n s sound logic has been extended to housing, employment, voting rights, transportation, public accommodations, parks and recreations, and it initiated a torrent of court decisions and legislation which expanded and protected individual liberties not only for persons of color, but moreover for women, gays and lesbians, the elderly, and our disabled. Few people know, however, that the Orange County case of Mendez v. Westminster School District, et al., 64 F.Supp. 544 (S.D.Cal. 1946) and its appellate case of Westminster v. Mendez, 161 F. 2 d. 774 (9th Cir. 1947) provided a key link in the evolutionary chain of school desegregation cases culminating in Brown v. Board of Education. T h e judges found that the We s t m i n s t e r, Santa Ana, Garden Grove, and El Modena (Orange) School Districts systematically and intentionally segregated Mexican American children into separate schools solely because of their surname and/or the color of their skin. Therefore the courts ordered the cessation of that unconstitutional conduct. M e n d e z was the first federal court case to hold that separate schools for children of color were not equal; therefore, such conduct violated their constitutional rights. Although, M e n d e z is not cited in B r o w n, t h e National Association for the Advancement of Colored People (NAACP) filed a friend-of-the court brief in Mendez v. Westminster School District: How it Affected B rown v. Board of Education

M e n d e z and used M e n d e z as a test case to attempt to topple the separate but equal doctrine in public education. Moreover, I know about M e n d e z b e c a u s e it affected me personally. Were it not for the lawsuit I would have attended the same segregated Mexican school in Placentia, California that my father, uncles and aunts and cousins had to attend. So on this anniversary of B r o w n, I offer this account of the M e n d e z case and how it affected Brown v. Board of E d u c a t i o n, my community and me. Orange County in the 1920s During the Mexican Revolution (1910-1920), thousands of Mexicans fled the turmoil in Mexico and entered the United States. At that time, prior to the enactment of the 1924 Immigration Act, no laws prohibited Mexican citizens from entering the United States. Indeed, since 1542 when Cabrillo fir s t explored California, Mexicans had been settling primarily in the Southwest. As a result of the heavier migration in the early 1920s, Southwest public school officials began dealing with the Mexican problem by forcing those children to be educated in separate facilities. My grandparents came from Mexico and settled in Placentia in 1918. At that time, one grammar school, Bradford Avenue Elementary, served the small city of approximately 800 residents and the neighboring ranches. My uncle and aunt attended Bradford until 1922 when the school board decided to use scarce public funds to construct another grammar school, Baker Street School, a mere fiv e blocks from Bradford. All Mexican American children, including my father, uncles, aunts, cousins, who are all American born, were ordered to attend Baker Street School and all white children were instructed to attend Bradford. White families like the Hapners, Carltons, Franklins, Steens, Edwardsons, and others lived within two blocks of B a k e r, but were directed to Bradford, which was a superior school in terms of facilities and teachers. There were no white children in Baker. They were all Mexican American. Even the school bus which would pick up white and Mexican American children from Santa Ana Canyon and the Richfield area would dutifully leave the white children at Bradford and the Mexican American children at B a k e r. Then during World War II, in order to keep Mexican American students from attending Va l e n c i a High School, all 9th and 10th grade Mexican American children were directed to La Jolla Junior High School. In that manner, those students effectively were discouraged from graduating from high school. My uncles and aunts were forced to board the F E B R U A R Y 2 0 0 5 bus for the one mile trip to La Jolla, instead of being allowed to walk five blocks to Valencia High School. In 1934, Mexican American children made up one-fourth of the total student population in Orange C o u n t y. A study found that 70% of the Mexican American children attended Mexican segregated elementary schools. (See Gary A. Greenfield and Don B. Kates, Jr., Mexican Americans, R a c i a l Discrimination and the Civil Rights Act of 1866, 63 Cal. L.Rev. 682 (1975).) Similarly, in Te x a s, Arizona and all across the Southwest, Mexican children were forced to attend segregated public s c h o o l s. The M e n d e z L a w s u i t In 1945, Gonzalo and Felicitas Mendez moved their family from Santa Ana to We s t m i n s t e r, California. They had just leased a 40 acre parcel from a Japanese American family who was going to lose the land because they had been interned in a relocation camp. Busy tilling the fields, Mendez asked his sister Soledad Vidaurri to enroll his three children in the nearby 17th Street School when she went to enroll her two children. The school authorities told Mrs. Vidaurri that her two children (who were fairskinned and whose last name didn t sound Mexican ) could be enrolled, but that the Mendez children (who were dark-skinned and had a very Mexican sounding last name) would have to go to the Mexican school a few blocks away. I r o n i c a l l y, Mendez, who was born in Mexico, but had resided in California since he was six-years old, had attended integrated public schools in the early 1920s. He had become a U.S. citizen. His wife, Felicitas, was born in Puerto Rico, therefore she was also an American citizen. Their three children were all born in the United States and were fluent in E n g l i s h. Outraged that his children were rejected, Mendez consulted with David C. Marcus, a Los Angeles attorney. Mendez had heard about Marcus who had recently won a civil rights case for Mexican Americans, Lopez v. Seccombe, 71 F.Supp. 769 (S.D.Cal. 1944). In L o p e z, American citizens of Mexican or Latin descent were not allowed to use the public swimming pools maintained by the City of San Bernardino, California. The plaintiff was Ignacio Lopez, a graduate of U.S.C. and a World War II veteran. W.C. Seccombe was the Mayor of the city of San Bernardino. Federal Court Judge Yankwich ruled that under the 14th Amendment of the U.S. Constitution: That petitioners are entitled to... equal rights and treatment with other persons as citizens of the United States in the use and enjoyment of the facilities of said park and playground. I d. at 771. The permanent injunction issued by Judge Yankwich prohibited the city of San Bernardino from restricting the use of the public swimming pools and thereby opened the pools usage to all persons. Marcus advised Mendez that California did not have a state law that required separate schools for Mexican American children. The State did not even require separate schools for Negro (African American) children. At that time, the only groups of children who could be legally segregated by State law were Indians (Native Americans) and Japanese, Chinese, or Mongolian. Education Code 8003 read: Schools for Indian children, and children of Chinese, Japanese, or Mongolian parentage: Establishment. The governing board of any school district may establish separate schools for Indian children, excepting children of Indians who are wards of the United States Government and children of all other Indians who are descendants of the original American Indians of the United States, and for children of Chinese, Japanese, or Mongolian parentage. Sec. 8004 stated: Same: Admission of children into other schools. When separate schools are established for Indian children or children of Chinese, Japanese or Mongolian parentage, the Indian children or children of Chinese, Japanese, or Mongolian parentage shall not be admitted into any other school. Marcus counseled Mendez that the case would be more persuasive if he could prove that other school districts in Orange County besides Westminster maintained separate public schools for Mexican American children. The Lorenzo Ramirez family from El Modena (Orange), the Frank Palomino family from Garden Grove and the William Guzman and Thomas Estrada families from Santa Ana all quickly joined Mendez. On March 2, 1945, Marcus filed the lawsuit in the Federal District Court in Los Angeles, California, on behalf of the afore-mentioned families against the four school districts. The lawsuit, a class suit based on the 14th Amendment to the U.S. C o n s t i t u t i o n s guarantee of the equal protection of the laws demanded that the school districts be enjoined from maintaining public schools for Mexican American children. Amicus briefs were filed by the ACLU (American Civil Liberties Union) and the National Lawyers Guild. On July 5, 1945 the two week trial commenced 3 1

before Federal Court Judge Paul J. McCormick. A jury was not selected because an injunction was demanded, therefore, the judge ruled on all matters of fact and law. At the hearing, petitioner s attorney, David C. Marcus, presented evidence of the segregation policies through the testimony of local community members who had attended the schools, to show the extreme nature of the segregation. Others testified as to specific instances of transfer denials for Mexican children and inferior facilities provided for them. Some of those who testified at the hearing were children, who told accounts of the segregation and how it made them feel. (Christopher Arriola, Knocking on the Schoolhouse Door: Mendez v We s t m i n s t e r, Equal Protection, Public Education, and Mexican Americans in the 1940 s, La Raza Law Journal of Boalt Hall School of Law (1995).) Among the 25 witnesses for the petitioners was nine year-old Sylvia Mendez, the daughter of Gonzalo and Felicitas, who testified in perfect English that she was ready to go to the 17th Street School, her neighborhood school. Marcus retained, as an expert witness, Dr. Ralph Deals, head of UCLA s Anthropology department, who testified that separating Mexican American children from white children would stamp the Mexican American children with a badge of inferiority and the white children with a badge of superiority; that such practice would lead to unproductive Mexican American citizens. He also t e s t i fied that Nazi Germany had recently labeled as i n f e r i o r, people such as Jews and Gypsies, but that America should not follow such attitudes and practices. (Reporter s Transcript Proceedings, Mendez v. We s t m i n s t e r, 64 F.Supp. 544 (S.D.Cal. 1946).) During the trial, Garden Grove School District Superintendent James L. Kent testified that he considered Mexican American children inferior. Court records show that Kent s testimony included opinions that Mexicans are inferior in personal h ygiene, ability and in their economic outlook; which prompted Marcus to compare him to Hitler. Kent also testified that he would never allow a Latino child to attend an all-white school even if that child met all the qualifications to attend such a school. (Lesson Learned on School Discrimination, Los Angeles Ti m e s, September 9, 1996.) Santa Ana School District Superintendent Frank A. Henderson testified that students were assigned to the city s then 14 elementary schools solely on the basis of their last names. Exceptions were sometimes 3 2 made by the four districts for Latino children who looked white or had European names. I d. The school district s main legal argument was that the Federal Court lacked jurisdiction because local school board actions did not constitute state action. On February 18, 1946, Judge McCormick ordered the injunction against the four school districts restraining them from segregating children of Mexican or Latin descent in separate public elementary schools. He declared that: The equal protection of the laws pertaining to the public school system in California is not provided by furnishing in separate schools the same technical facilities, text books and courses of instruction to children of Mexican ancestry that are available to the other public school children regardless of their ancestry. A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage. Mendez v. We s t m i n s t e r, 64 F.Supp. 544, 549 (S.D.Cal. 1946). Judge McCormick further found that commingling of the entire student body instills and develops a common cultural attitude among the school children which is imperative for the perpetuation of American institutions and ideals. I d. at 549. F i n a l l y, he held that It is also established by the record that the methods of segregation prevalent in the defendant school districts foster antagonisms in the children and suggest inferiority among them where none exists. I d. The school districts defiantly filed an appeal to the Ninth Circuit in San Francisco, California. Amicus briefs, on behalf of the Mendez family and the other plaintiffs, were filed by the ACLU, National Lawyers Guild, Japanese American Citizens League, American Jewish Congress, NAACP, and the Attorney General of California. The NAACP brief was authored by Thurgood Marshall (later United States Supreme Court Justice), Robert L. Carter and Loren Miller. Robert L. C a r t e r, now a retired New York State Supreme Court Judge, stated that the M e n d e z case was a test case for the NAACP in its attempt to overturn Plessy v. F e r g u s o n, 163 U.S. 537 (1896), the case that set the precedent for separate but equal facilities for white and colored races. According to Judge C a r t e r, the brief was very similar in content to the first brief which the NAACP filed in B r o w n in 1952. (Robert L. Carter interview, June 18, 2003.) The Attorney General of California, Robert W. K e n n y, argued that not only should the trial court s decision be upheld but that the same reasoning should apply to California s Education Code 8003 and 8004 as they also violated the due process and equal protection clauses of the Fourteenth Amendment. The Attorney General s brief concluded: We in California like to think of our people as enlightened and free from prejudice. We are undoubtedly remarkably free from strife caused by prejudices of race, color or creed. As in the case of any large territory, local spots of difficulty occur from time to time. From the statewide viewpoint, however, we are convinced that the great majority of Californians want no part of race discrimination or segregation. The Attorney General is convinced that segregation of pupils on account of race is not the policy of the State and that as pertains to the issues of the case the decision of the Honorable Paul J. McCormick and the position of the appellees should be sustained. (Brief of the Attorney General of the State of California as amicus curiae, Westminster v. Mendez, 161 F.2d 774 (9th Cir. 1947) No. 11,310.) The school district s main argument was that the federal court lacked jurisdiction because local school board actions did not constitute state action. On April 14, 1947 Justice Albert Lee Stephens, writing for a unanimous (7-0) Ninth Circuit Court of Appeals, upheld the trial court s decision. But Justice Stephens narrowly construed the decision on the grounds that the segregation constituted unequal application of the law. The appellate court found that as no California law required or permitted the school districts to segregate Mexican school children, that such segregation violated the plaintiffs Fourteenth Amendment right to the equal protection of the laws. The appellate court refused to confront Plessy v. F e r g u s o n by stating: we are of the opinion that the segregation cases do not rule the instant case and that is reason enough for not responding to the argument that we should consider them in light of the amicus curiae briefs. Westminster v. Mendez, at 780. The four school districts finally accepted the decisions and decided not to appeal to the United States Supreme Court which would have been their next step. Slowly they began dismantling the segregated systems in their schools. Results of M e n d e z The M e n d e z case glaringly exposed the invidious California laws mandating separate schools for Indian and Asian children. As a result, in 1946, Governor Warren, proposed to the Legislature that Education Codes 8003 and 8004 be repealed. The Legislature complied and Warren signed the bill on

June 14, 1947. I d. Other school districts in California began shutting down their Mexican schools. For example, in Bell Town, a little settlement near Riverside, organizer Fred Ross helped the Mexican American and Negro families found the Bell Town Improvement League. Citing the M e n d e z case, they petitioned the school authorities to open up the white school. On September 16, 1946, the superintendent of schools told his staff: If there is as much as one segregated Mexican American pupil see to it that he gets unsegregated immediately. (Carey McWilliams, N o r t h from Mexico 283 (1968).) The New York Times reported that the Riverside School District, threatened with a lawsuit, ended segregated schools for Mexican American children. (Lawrence E. Davies, Segregation of Mexican American Students Stirs Court Fight, New Yo r k Times Magazine, December 22, 1946, at 6.) In 1947 in Texas, Price Daniels, the Attorney General of the State, issued an advisory opinion which forbade blind segregation of its Mexicandescended students, but he continued to justify separate schools or classes for linguistically defic i e n t pupils. (Opinion No. V-128, Digest of Opinions of the Attorney General of Texas, Austin (1947).) In 1947, the League of United Latin American Citizens (LULAC) activists filed suit in the We s t District Federal court of Texas, Delgado v. Batrop Independent School District, C i v. No. 388 (W. D. Te x. June 15, 1948) and the court ended state-mandated segregation of all Mexican American children, unless they were linguistically English deficient. The legal campaign in Texas resulted in the United States Supreme Court s decision of Hernandez v. State of Te x a s, 347 U.S. 475 (1954), just two weeks before Brown, which held that under the Fourteenth Amendment, it was unlawful to exclude Mexican Americans from jury service based solely on their national origin. In 1948, my father, Alfred V. Aguirre, a Wo r l d War II veteran, formed Veterans and Citizens of Placentia, a group composed of Mexican American World War II veterans. The organization registered over 300 Placentia citizens to vote. That year, my father and Ted Duran, a member of the group, consulted with G.W. Marshall, a prominent Los Angeles a t t o r n e y. They asked Marshall if the M e n d e z c a s e could be used to end segregation of Mexican American children in Placentia s schools. Marshall counseled that the same legal principles applied; therefore, such a lawsuit would be successful. But Marshall advised that the group should petition the Placentia School Board one more time before fil i n g F E B R U A R Y 2 0 0 5 the lawsuit. Under threat of a law suit, the school o f ficials relented and opened Bradford Elementary School to all students. In 1949, the Mexican school closed due to lack of attendance. I entered kindergarten at Bradford in 1951, thus escaped being forced to attend the Mexican school. In Arizona in 1951, a federal court judge followed M e n d e z and in Gonzalez v. Sheely, 9 6 F.Supp. 1004 (1951), and enjoined the school district from maintaining separate schools for Mexican American children. Other school districts in Arizona followed suit and voluntarily integrated their schools. Chief Justice Earl Wa r r e n Earl Warren was born in 1891 in Los Angeles and was raised in Bakersfield, California. He served as the District Attorney for Alameda County from 1925 to 1939 and Attorney General of California from 1939 to 1943. He witnessed the disparate treatment of Mexican Americans in California. He knew that U. S. Webb, the Attorney General of California, had issued the following Opinion in 1929: I find no authority in the law of this state for the establishment of separate schools for Mexicans. (Attorney General of California letter dated September 27, 1 9 2 9. ) In addition, Warren must have heard about the San Diego County Superior Court decision in 1931 regarding the segregation of Mexican American children in the little town of Lemon Grove, California. In that case, entitled Alvarez v. Lemon Grove, Judge Claude L. Chambers ruled that Mexican American children were considered white ; therefore they could not be arbitrarily separated from other white children. ( R o b e r t Alvarez, a minor v. E.L. Owen, et al., Board of Trustees of Lemon Grove School District, N o. 66625, Superior Court, San Diego County.) The Lemon Grove case ultimately helped defeat the Bliss bill in the California Legislature, which attempted to reclassify Mexicans as Indians so that they could be legally segregated under California law (Education Codes 8003 and 8004) at the time. (Paul Espinosa, The Lemon Grove Incident, (Docudrama 1985).) Earl Warren, a Republican, was elected Governor of California three times in 1942, 1946 and 1950. He enjoyed tremendous bipartisan political support as he was on both the Republican and Democratic tickets in 1946 and 1950. In 1946, Governor Earl Warren directed the Attorney General s office to assist the plaintiffs in the M e n d e z case. In his biography of Warren, Ed Cray states: He aligned the state against an Orange County school district that sought to assign Hispanic pupils to separate grammar schools. (Ed C r a y, Chief Justice: A Biography of Earl Wa r r e n 167 (1998).) Therefore, Warren probably read Judge M c C o r m i c k s decision in M e n d e z and understood the legal and political issues, otherwise he would not have ordered the Attorney General to intervene. On September 30, 1953, President Eisenhower named Warren Chief Justice of the United States Supreme Court. The initial reaction to the new Chief Justice was not uniformly warm. (Justice) Felix Frankfurter groused privately that Warren was just a political hack, and several critics noted his lack of prior judicial experience, a deficiency he shared with (Justices) John Marshall, Charles Evans Hughes and Harlan Fiske Stone. But within a few weeks, the hearty and solicitous Warren won over the justices; he sought Frankfurter s counsel, soothed (Justice) Jackson s hurt feelings, asked (Justice) Black to preside at the first conference, and brightened the Court s dimmer lights (Justices) Burton, Clark and Minton with his glow. (Peter Irons, A P e o p l e s History of the Supreme Court 3 9 4 ( 1 9 9 9 ). ) On December 7, 1953, the second round of arguments began in B r o w n and the four other related school segregation cases of Briggs v. South Carolina, Gebhart v. Belton (Delaware), Davis v. Prince Edward County ( Virginia) and Bolling v. S h a r p e (District of Columbia). Professor Peter Irons describes the series of events that followed and Wa r r e n s aggressive leadership: The arguments concluded on December 10, 1953, but five months passed before Chief Justice Warren announced the Court s decision. During that time, the Court s marble walls concealed from outsiders the politicking that swirled inside. Earl Warren made no pretensions of legal scholarship, but no other justice ever matched his political skills. Even more than Frankfurter, the Chief was determined to forge a unanimous Court around a brief and forceful opinion. Only if the justices spoke with one voice, in words the American people could understand, would the Court be able to help the nation heal its racial wounds. Warren set himself an ambitious task, and spent months cajoling his colleagues. Three justices required the full Warren treatment. Warren won over Frankfurter by suggesting 3 3

that the Court issue the opinion (in the form) he wanted by giving the southern districts time to comply with all deliberate speed, and also order a third round of argument on methods of compliance. Stanley Reed finally succumbed to Warren after more than twenty lunchtime discussions. I d. at 396-97. On May 17, 1954, the rookie Chief Justice orally read his decision to the courtroom stating that We conclude u n a n i m o u s l y (emphasis added) that in the field of public education the doctrine of separ a t e but equal has no place. However, the printed opinion in Brown does not contain the word unani m o u s l y. Obviously Warren added it for emphasis and for the reporters. S i g n i f i c a n t l y, Wa r r e n s forceful, yet easily understood ruling in B r o w n mirrored the language and sentiment of McCormick s decision in M e n d e z. For example: M e n d e z :... Commingling of the entire student body instills and develops a common cultural attitude among the school children which is imperative for the perpetuation of American institutions and ideals. I d. at 549. B r o w n : It (education) is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. To d a y, it is a principal instrument in awakening the child to cultural values... I d. at 493. M e n d e z : The evidence clearly shows that Spanish-speaking children are retarded in learning English by lack of exposure to its use because of segregation... I d. at 549. B r o w n : Segregation with the sanction of law therefore has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system. I d. a t 4 9 4-9 5. Mendez: It is also established by the record that the methods of segregation prevalent in the defendant school districts foster antagonisms in the children and suggest inferiority among them where none exists. I d. at 549. B r o w n : Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. M e n d e z : The equal protection of the laws pertaining to the public school system in California is not provided by furnishing in separate schools the 3 4 same technical facilities, text books and courses of instruction to children of Mexican ancestry that are available to the other public school children regardless of their ancestry. I d. at 549. Brown: We conclude that in the field of public e d u c a tion the doctrine of separate but equal has no place. Separate education facilities are inhere n t ly unequal. Therefore, we hold that the plaintiffs... are deprived of the equal protection of the laws... Id. at 4 9 5. M e n d e z : A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage. I d. at 549. Brown: In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. I d. at 493. Based on all the foregoing, it is clear that Warren read and thoroughly absorbed McCormick s ruling in M e n d e z prior to authoring the B r o w n decision. Moreover, the M e n d e z decision helped shape Wa r r e n s sense of fairness and equity which manifested itself in the B r o w n case and is demonstrated in the following exchange: Wa r r e n s sense of jurisprudence... riled (Justice) Felix Frankfurter. During one conference late in the 1957 term, Frankfurter exploded at the Chief. God damn it, you re a judge! You don t decide cases by your sense of justice or your personal predilections. Thank heaven, I haven t lost my sense of justice, Warren roared back. (Ed Gray, C h i e f Justice: A Biography of Earl Wa r r e n 3 5 6. ) C o n c l u s i o n The underlying principle of M e n d e z a n d B r o w n is that it exemplifies the best in our American cultural values: courage and fairness. The cases displayed the courage of Gonzalo and Felicitas Mendez, of Reverend Oliver Brown and all the other parents in the M e n d e z lawsuit and the B r o w n lawsuits to challenge the racist educational system through the courts for the benefit of their children and all other children and the courage of the judges in rendering unpopular, yet morally and legally fair opinions. The cases are a testament to the fairness that can be found in our legal system. Our country displays that rare quality of being able to heal itself, most of the time, from within, without resort to violence and b l o o d- shed. Racism and other important issues have been overcome or resolved largely through our courts where justice ultimately prevails. All of which culminated in the metamorphic evolution of our socie t y, from an ugly caterpillar into a beautiful, multicolored butterfly. That is the true legacy of M e n d e z and B r o w n. Frederick P. Aguirre is a judge of the Superior C o u r t.