Академический Документы
Профессиональный Документы
Культура Документы
Texas
Charles R. Calleros 1
Carlos Cadena
partly by the extent to which others single out members of the group
for adverse treatment. In Castaneda, the Court noted that "statistics
introduced by respondent from the 1970 census illustrate disadvan-
tages to which the group has been subject"; 62 however, this passage
apparently is introducing the Court's analysis of discrimination in
jury selection rather than explaining its identification of Mexican-
Americans as a protected class. 63
In Tijerina v. Henry, 64 a case outside the context of jury compo-
sition, the Supreme Court passed on the opportunity to apply and
extend the Hernandez approach to defining a legally significant
class. In Tijerina, a three-judge panel of the federal district court
dismissed a class action in a suit seeking equal educational rights,
on the ground that a class was not adequately defined by ethnicity,
Spanish surnames, and use of Spanish as a primary or maternallan-
guage.65 The Supreme Court dismissed the appeal without opin-
ion,66 over a spirited dissent by Justice Douglas, who noted that:
[T]hose who discriminate against members of this and other minority
groups have little difficulty in isolating the objects of their discrim-
ination. And it is precisely this discrimination, as alleged by appel-
lants in their complaint, that presents the "questions of law or fact
common to the class." 67
..A..fter reviewing the recognition of a protected class in Hernandez
on the basis of the discriminatory treatment of Mexican-Americans
in Jackson County, 68 Justice Douglas applied the same approach to
certification of a class for class action purposes:
What the Court said in Hernandez is, I think, pertinent to the
question of establishing the existence of a proper class for a class
action under Rule 23. There can be no dispute that in many parts of
the Southwestern United States persons of Indian and Mexican or
Spanish descent are, as a class, subject to various forms of discrim-
ination. Appellants, as members of that class, brought this action to
prevent the continuance of alleged discriminatory actions taken
against the class. I do not see how it can be seriously contended
that this suit is not a proper class action. 69
That Justice Douglas stood alone in Tijerina is perhaps emblem-
atic of the extent to which Hernandez has been limited to its context
of jury composition and has failed to emerge from the shadows of
Brown v. Board of Education. 70
Nonetheless, Hernandez represents an important legal milestone
for Mexican-Americans, in the recognition of their status as a pro-
tected class, and for the maturation of the Latino bar as well. As
summed up eloquently by Professor Michael Olivas,
[I]n a brief and shining moment in 1954, Mexican-American lawyers
prevailed in a system that accorded their community no legal status
SECTION II Equality 375
Endnotes
1. Professor of Law, Sandra Day O'Connor College of Law at Arizona State University. The
author thanks second-year law student Amelia Valenzuela and Assistant Librarian David Gay
for their invaluable research assistance on this topic.
2. Hernandez v. State, 251 S.W.2d 531, 532 (Tex. Crim .. App. 1952).
3. Hernandez v. Texas, 347 U.S. 475, 476, 480-482 (1954) (summarizing trial motion,
and accepting the proof offered by Hernandez's attorneys about systematic exclusion);
Michael A. Olivas, Hernandez v. Texas: A Litigation History, reprinted in "Colored Men"
and "Hombres Aqut'": Hernandez v. Texas and the Emergence of Mexican-American Lawyer-
ing 209, 213, 215 (Michael A. Olivas ed., Arte Publico Press 2006) (hereafter Colored Men)
(Hernandez was indicted and tried by all-white juries).
4. 347 U.S. 483 (1954).
5. Hernandez v. Texas, 347 U.S. 475 (1954).
6. Arthur Krock, In the Nation, No Clue to the Separate Schools Case, N.Y. Times 32
(May 6, 1954) (analysis of Hernandez mostly in attempt to predict outcome in pending
decision in Brown).
7. Olivas, supra note 3, at 211-213 (discussing case of Sanchez v. Texas, 243 S.W.2d
700 (1951), as well as the crime and the early stages of the Hernandez prosecution).
8. Hernandez, 347 U.S. at 476-477 (summarizing trial motions of Hernandez's defense
team).
9. 294 U.S. 587 (1935); see also Castaneda v. Partida, 430 U.S. 482, 501 (in applying
Norris test, finding that evidence established a "prima facie case of discrimination in grand
jury selection" and finding that "the State failed to rebut the presumption of purposeful dis-
crimination"). "While the earlier cases involved absolute exclusion of an identifiable grbup,
later cases established the principle that substantial underrepresentation of the group con-
stitutes a constitutional violation as well, if it results from purposeful discrimination" as
required under Washington v. Davis, 426 U.S. 229, 239 (1976). Castaneda, 439 U.S. at
493.
10. !d. at 591-599.
11. Hernandez, 347 U.S. at 476-477.
12. Hernandez v. State, 251 S.W.2d 531, 534-535 (Tex. Crim. App. 1952).
13. Hernandez v. State of Texas, 346 U.S. 811 (1953).
14. Olivas, supra note 3, at 217-218 ("as the junior partner, de Anda remained in Texas
to mind the store and continue the trials that were still ongoing'').
15. A Cotton Picker Finds Justice! The Saga of the Hernandez Case (hereafter A Cotton
Picker Finds Justice!) (Ruben Munguia ed.), reprinted in Colored Men, supra note 3, App. VIII,
at 361 & n.1, 362 (in Gustavo C. Garcia, An Informal Report to the People).
16. Lupe S. Salinas, Gus Garcia and Thurgood Marshall: Two Legal Giants FighUng for
Justice, 28 T. Marshall L. Rev. 145, 169 (2002-2003).
17. See supra notes 3-5 and accompanying text.
18. A Cotton Picker Rnds Justice! supra note 15, at 359 (in Maury Maverick, Foreword).
19. Olivas, supra note 3, at 216, 218.
20. !d. at 218 (citing to letter to the editor written by John Herrera); Salinas, supra note
16, at 170.
376 PART rwo Briefs That Changed the World
21. A Cotton Picker Finds Justice! supra note 15, at 364 (in Gustavo C. Garcia, An
Informal Report to the People).
22. !d. at 365.
23. Hernandez v. Texas, 347 U.S. 475, 480-482 (1954).
24. !d. at 478-480.
25. lan F. Haney Lopez, Retaining Race: LatCrit Theory and Mexican American Identity
in Hernandez v. Texas, 2 Harv. Latino L. Rev. 279, 287 & n.29 (1997); Clare Sheridan,
"Another White Race'~· Mexican Americans and the Paradox of Whiteness in Jury Selection,
21 Law & Hist. Rev. 109, 127, 135-138 (2003); A Cotton Picker Finds Justice! supra note
15, at 371 (in Carlos C. Cadena, A Thumbnail Sketch) (assuring Mexican-Americans that the
Court in Hernandez found discrimination on the basis of national origin and did not classify
them as "non-white").
26. Lopez, supra note 25, at 293-294; Sheridan, supra note 25, at 141-142.
27. Olivas, supra note 3, at 216 & n.42.
28. Hernandez, 347 U.S. at 479-480.
29. See Brief for the Petitioner, Hernandez v. Texas, 347 U.S. 475 (1954) (No. 406) at
28 (stating in the Conclusion that "[a]ll courts which have considered the question have held
that the Fourteenth Amendment forbids discrimination because of national origin"); see also
id. at 6 n.1 (questioning the Texas appellate court's use of the term Mexican "nationality,"
which suggests Mexican citizenship, and noting that the brief generally refers to "persons of
Mexican descent").
30. Hernandez, 347 U.S. at 478.
31. !d. at 479-480; see also St Francis College v. AI-Khazraji, 481 U.S. 604, 613
(1987) (distinguishing "place or nation of ... origin" from race).
32. !d. at 482 (emphasis added).
33. Espinoza v. Farah Mfg. Co., 414 U.S. 816, 818 (1973).
34. See supra note 25.
35. Olivas, supra note 3 at 21 0.
36. Hernandez, 347 U.S. at 482 (emphasis added).
37. See supra note 29 (Petitioner's Brief uses the term "persons of Mexican descent"
while arguing that the Equal Protection Clause forbids national origin discrimination).
38. Hernandez, 347 U.S. at 479.
39. Castaneda v. Partida, 430 U.S. 482, 495 (1977) (emphasis added).
40. 481 u.s. 604 (1987).
41. St. Francis College, 481 U.S. at 612.
42. Section 1981, divided into three subsections after amendment in the Civil Rights Act
of 1991, provides in part:
All persons within the jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts....
42 U.S. C. § 1981 (a) (2006).
43. St Francis College, 481 U.S. at 609 ("Although § 1981 does not itself use the word
'race,' the Court has construed the section to forbid all'racial' discrimination in the making of
private as well as public contracts."); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273,
285-296 (1976) (§ 1981 applies to discrimination against white persons, as well as against
non-white persons}.
44. St. Francis, 481 U.S. at 609.
45. !d. at 609-61 0. Of course, it is possible for someone to discriminate against mem-
bers of the same race for various reasons. See, e.g., Castaneda v. Partida, 430 U.S. 482, 503
(1977) (Marshall, J., concurring) (noting that members of disadvantaged groups may
sometimes try to disassociate themselves with those groups, even to the point of adopting
the majority's negative attitudes towards the minority). In St Francis College, however, AI-
Khazraji apparently did not assert that decision-makers held discriminatory animus toward
Caucasians generally; he therefore needed to establish his membership in a different race
than that of the decision-makers, a race toward which the decision-makers held discrimina-
tory animus.
46. St Francis, 481 U.S. at 61 0 & n.4.
47. !d. at 609-610.
48. !d. at 61 0.
SECTION II Equality 377