Vol. 14 No. 8 (August 2004), pp.676-682 

MEXICAN-AMERICANS AND THE LAW:  ¡EL PUEBLO UNIDO JAMÁS SERÁ VENCIDO!  by Reynaldo Anaya Valencia, Sonia R. Garcia, Henry Flores, and Jose Roberto Juarez Jr.  Tucson: The University of Arizona Press, 2004. 220pp. Paper.  $15.95. ISBN: 0-8165-2279-0.  

Reviewed by George Kiser, Department of Politics and Government, Illinois State University.  Email: gckiser@ilstu.edu  

With this book, the University of Arizona Press continues its reputation for high-quality books on Mexican-Americans. One of a series on the “Mexican-American Experience,” it is authored by four Mexican-American professors (two law professors and two political scientists, all of St. Mary’s University in San Antonio).  The title is about 95% correct in indicating that this is a book about Mexican-Americans, defined by the authors as U.S. citizens of Mexican ancestry. However, they also pay some attention to Mexicans who have entered the United States illegally (undocumented aliens), to the legal questions thus generated, and to case law that has developed as a consequence. An example is PLYLER v. DOE (1982), in which the U.S. Supreme Court held that undocumented children have a right to attend public schools. 

Intended primarily as an undergraduate text, this book summarizes and integrates a vast amount of literature. Its primary focus is appellate court cases dealing with education, gender, language, immigration, voting, affirmative action, and criminal justice. But the authors go far beyond appellate cases, which are simply used as another means to understand the issues. They discuss also such matters as historical background, pro and con arguments, legislative and executive forums, and interest groups—to name only a few. 

The authors reprint excerpts from 22 cases, typically three per chapter. Ranging from 1-7 pages, the excerpts comprise approximately half of the book’s pages, and the cases fall into one of the following categories: 1) There was a Mexican-American litigant and the case has special implications for Mexican-Americans—e.g., GARZA v. SMITH (1970), in which a Texas court held that Spanish-speaking voters have a right to assistance of interpreters in the voting booth;  2) There was a Mexican-American litigant although the case has minimal apparent, special implications for Mexican-Americans—e.g., MIRANDA v. ARIZONA (1966), which applied to all police interrogations of in-custody suspects;  3) Neither litigant was Mexican-American, but the case has special implications for Mexican-Americans—e.g., HERNANDEZ v. NEW YORK (1991) in which the Supreme Court ruled that prosecutors may use peremptory challenges to remove Spanish-speaking prospective jurors if there is sufficient reason to believe they would not rely faithfully upon the official record of the court’s Spanish interpreter.

Understandably, teachers without legal background may be reluctant to adopt “legal” textbooks, fearing they and their [*677] students will be overwhelmed by subtle legal distinctions, incomprehensible jargon, obscure legal principles, and the like. Fortunately this book is so teacher- and student-friendly that it will be readily understandable even by freshmen. It is well written, and the excerpted case opinions are virtually free of difficult passages. The authors generally deserve high marks for explaining just enough, so students will not be left in the dark or burdened with a treatise of law-school difficulty. They include a number of helpful student features. When legal terms first appear, they are in bold type, and there is a glossary of legal concepts. Discussion questions, suggested readings, and notes appear at the end of each chapter. Assuming no prior student knowledge of the courts, the authors include in the introduction a good brief overview of court operations, particularly at the appellate level.  

In addition to writing clearly and succinctly, the authors lace their work with particularly interesting facts. They note, for example, that one of the reprinted cases marks the first time Mexican-American lawyers argued before the Supreme Court. They explain that, although BROWN v. BOARD of EDUCATION (1954) is routinely recognized as the first federal case to hold segregated public schools unconstitutional, at least three federal courts had earlier held segregation of Mexican-American school children unconstitutional. 

Although no theme dominates, there are several mini-themes, some more explicit and prominent than others. Among them: 1) Mexican-Americans have been discriminated against since their earliest days, and harsh discrimination remains a fact of life;  2) In their struggle against discrimination, Mexican-Americans have made considerable progress, especially during recent decades;  3) Progress in appellate courts has been quite mixed, even during recent decades;  4) Mexican-Americans have also struggled for their rights in legislative and administrative forums;  5) Mexican-American interest groups have played a major role in the fight against discrimination;  6) Mexican-American litigants have expanded the rights of all Americans; and 7) Mexican-Americans have much in common with other minority groups, and they have sometimes cooperated in their struggle for justice.  

This book would fit nicely into a variety of courses, including Ethnic Studies, Race Relations, the Sociology of Law, Minorities and the Law, Law and Society, American Government, Judicial Process, History of Mexican-Americans, and History of the Southwest. The authors note that, although Hispanics such as Mexican and Cuban Americans differ and one should not generalize lightly, they also have much in common. Thus, this book might fit also into courses on non-Mexican-American Hispanics.  

Although the authors describe themselves as “activists” (p.xv), they deserve high marks for keeping their biases out of the book (unless one views commitment to Equal Protection as a disqualification for scholarly work). In numerous instances, they acknowledge “both sides” of the story. For example, they outline the case against affirmative action in some detail, and a number of the excerpted cases include both [*678] majority and dissenting opinions. Unlike extremists who claim either that Mexican-Americans have made no progress or that discrimination is a thing of the past, the authors take the position supported by the record—much progress has been made but much discrimination remains. They make no effort to idealize Mexican-Americans or the Mexican government. They note, for example, that domestic violence is prevalent in Mexico and that the government does virtually nothing to prohibit it. In one of the excerpted cases on sexual harassment, both the harasser and the victim were Mexican-Americans (EEOC v. HACIENDA HOTEL, 1989). The authors’ language is scholarly, measured, and objective.  

Despite this book’s impressive merit, it could be improved. There are a few errors. The authors say the vote in one case was 7-3 (p.93), but the Supreme Court has only nine members, not ten. They write that “The Fifteenth Amendment guarantees the voting rights of all citizens” (p.134). In fact, it merely prohibits states from denying U.S. citizens the right to vote “on account of race, color, or previous condition of servitude,” thus leaving states free to ban voting by such citizens as convicts, children, and insane persons in mental institutions. The authors claim that “two of the four MIRANDA warnings—notification of the right to counsel and . . . to have counsel provided at no cost if one is indigent—are derived directly from” the Sixth Amendment right to counsel (p.168). In fact, the Supreme Court derived all of the Miranda rights, even the right to counsel for police interrogations, from the Fifth Amendment, not from the Sixth. The authors assert that all states have intermediate appellate courts (p.xx), but actually only 39 states do so.  

As noted earlier, the great majority of the book neither under- nor over-explains, but a few points deserve more explanation. For example, the authors go into considerable detail about litigation challenging at-large elections but never clearly tell students how and why such systems tend to disadvantage Mexican-Americans. With regard to permanent checkpoints near the Mexican border for undocumented aliens, we are not told whether all, or only some, vehicles are stopped. The authors discuss the Census Bureau’s plan to cope with undercounting Mexican-Americans by estimating the number of uncounted persons, but they do not clearly specify how those estimates are derived.  

Reasonable people may disagree about how limited space in a text should be allocated to various topics. I think the chapter on criminal justice is one of the weaker ones, primarily because so much of it (roughly half) is consumed by excerpts from ESCOBEDO v. ILLINOIS (1964) and MIRANDA, cases whose rules of law, on the surface, have no disproportionate impact on Mexican-Americans. MIRANDA, for example, simply held that if police fail to notify in-custody suspects of certain rights prior to interrogation, any statement made must be excluded from court. Of course, just beneath the surface, this rule has powerful implications for some Mexican-Americans that it does not have for Anglos—but the authors do not alert students to them. What if a suspect speaks only Spanish but the rights notification comes in English? What if the officer speaks poor Spanish and the warnings are not clearly translated? [*679] Without consideration of these and other issues, students may wonder what relevance it has to Mexican-Americans beyond the fact that MIRANDA merely happened to be Mexican-American.  

In sum, although this book has some problems, it is a very significant contribution to its field and is sure to become a “standard” text. While it will work nicely for freshmen and students with no legal background, even graduate students and scholars of Mexican-Americans are likely to encounter new and provocative information. If this book had been available a few years ago, I would almost surely have adopted it for my course on Minorities and the Law. Because no good textbooks were available, I spent considerable time preparing hand-outs and editing materials to be placed on reserve.  

Each chapter examines legal developments within their historical context regarding specific issues, such as gender equality, educational equality, voting rights, language rights, and immigration. The remainder of this review, which highlights material from two fairly typical chapters, is for readers who would like more detail.

Chapter 1: “Mexican-Americans and the Law”

The authors’ balanced approach is illustrated nicely by this chapter’s discussion of both discrimination and progress. During the 1920s, there were so many murders and lynchings of Mexican-Americans that Mexico’s ambassador protested to the United States. During much of the nation’s history, few juries, especially in the Southwest, would convict Anglos for violence against victims of Mexican ancestry no matter how strong the evidence. As recently as the 1960s, it was not unusual for Mexican-Americans to be systematically excluded from jury service, face registration and voting harassment, denied service by restaurants, and relegated to schools segregated by law.  

Cemeteries often practiced discrimination, either by refusing to sell burial plots or setting aside a section of the cemetery for persons of Mexican ancestry. The authors tell the story of Lt. Felix Longoria, a decorated war hero, who in 1949 was denied burial by the only cemetery in Three Rivers, Texas, leading to protests.  Ultimately, Senator Lyndon Johnson arranged for his burial in Arlington National Cemetery.  

One of the more detailed discussions of discrimination comes from Los Angeles of the early 1940s. In the Sleepy Lagoon case, a young man had been murdered in a clash between two groups of Mexican-Americans. In an unbelievably giant dragnet against minority people, the police arrested some 600 persons. Twenty-two were tried in the largest mass trial of California history, and twelve were convicted of murder. Although the state court of appeals overturned the convictions, its rationale was that the convictions were obtained on the basis of insufficient evidence, and the court explicitly rejected the defendants’ claim of discrimination (despite such indications of racism as the sheriff’s department telling the grand jury that Mexican-Americans are genetically predisposed to violence because they are descended from Mayan Indians). The court of appeals case, PEOPLE v. ZAMORA (1944), is excerpted. [*680] 

The authors discuss and reprint HERNANDEZ v. TEXAS (1954), one of the most important Mexican-American cases decided by the U.S. Supreme Court. Prior to this case, it was not clear whether the Equal Protection Clause applied to Mexican-Americans. As a practical matter, they were at different times considered either black or white, depending upon the circumstances. Restaurants, for example, often discriminated against them, assuming they were just a sub-category of black people. But when school boards wished to segregate them from Anglos, they assumed there was no racial discrimination because both groups were Caucasian. The Supreme Court in HERNANDEZ ruled that Mexican-Americans, with a long history of discriminatory treatment, are an identifiable class protected by the Equal Protection Clause. The authors note another historic aspect of that case: it was the first occasion on which Mexican-American lawyers argued before the Supreme Court.  

In their struggle for justice, Mexican-Americans have occasionally joined forces with other minorities, and the authors believe this has made them more effective. An example is PEREZ v. FEDERAL BUREAU OF INVESTIGATION (1988), brought by a diverse group of Mexican-American, Central and South American, Cuban, and Puerto Rican litigants, in which a federal trial court determined that the FBI had engaged in discrimination against Latino agents.

Chapter 4: Law and Language

The current English-only movement, dating prominently from the 1980s, maintains that English should be declared the official language of the United States and that government should use only English in its operations. The authors argue that this nativist and racist movement is based on various false assumptions (e.g., that American governments have never accommodated themselves to the language needs of non-English speakers and that the movement for bi-lingualism is a recent development springing from Latinos who, unlike earlier European immigrants, refuse to learn to speak English).  

History defies such claims. Consider, for instance, the experience of Texas. After gaining independence from Mexico, the state published government documents in both English and Spanish. After sizable immigration from Germany during the 1800s, Texas started publishing laws in German as well. Local schools were conducted in the predominant languages of the local areas (e.g., Polish, Czech, German, Danish, and Spanish).  

A number of states and the national government have made accommodations for the needs of language minorities. The New Mexico constitution mandates that certain government operations be conducted in both English and Spanish. Hawaii’s constitution declares two official languages, English and Hawaiian. The constitution of once-French-language Louisiana declares the right of its people to preserve their linguistic heritage. Federal law provides that when any single language minority comprises at least five percent of the voting population of an area, bi-lingual voting information and ballots must be provided.  

Although there is no national [*681] English-only law in the United States, a number of states have moved in that direction. During World War I, the Nebraska legislature, citing national security concerns, banned teaching foreign languages to public school children before the 8th grade. The Supreme Court held that law unconstitutional in MEYER v. NEBRASKA (1923).  

In 1988, the voters of Arizona passed an English-only law declaring that state and local government officials and employees could use only English during their working hours. That law was challenged by Ms. Yniguez, a bi-lingual Latina, whose job was handling claims of medical malpractice, some of which were brought by Mexican-Americans who could not understand English. The authors reprint some five pages of YNIGUEZ v. ARIZONANS for OFFICIAL ENGLISH (1995), in which the U.S. Court of Appeals for the Ninth Circuit held that law unconstitutional as a violation of freedom of speech. Although on appeal the U.S. Supreme Court found the conflict to be moot, the law was later held unconstitutional by the Arizona Supreme Court.  

The Civil Rights Act of 1964 (Title VII), while forbidding employers to discriminate against employees on the basis of “race, color . . . or national origin,” says nothing about discrimination based on language (which, of course, may be closely correlated with national origin). Hector Garcia was a salesman at a lumber company in Brownsville, Texas, a predominantly Mexican-American town. The company forbade its employees to speak Spanish on the job unless they were talking to Spanish-speaking customers. Mr. Garcia was fired for responding in Spanish when a Mexican-American employee asked him a question. The authors reprint GARCIA v. GLOOR (1980), in which the U.S. Court of Appeals upheld his firing. The court held there was no discrimination by national origin, there were valid business reasons for the rule, and that the bilingual Mr. Garcia had chosen to violate a rule which he could have obeyed.  

The English-only movement often assumes that the United States has never provided bilingual education. In fact, the authors note, bilingual education dates to the earliest years of this country and continued through the late 1800s. As it declined in the 1900s, Mexican-American children who could speak only Spanish were often punished for speaking even a few words of that language at school (as recently as the 1960s). Such insensitivity to their language problems contributed to high drop-out rates, which continue to the present day.

In 1968, Congress began providing funds for bilingual education in local schools. Although the schools of Portales, New Mexico, had a large number of Mexican-American students with language deficiencies, the school district did not establish bilingual programs for them. The authors excerpt SERNA v. PORTALES MUNICIPAL SCHOOLS (1974), in which the U.S. Court of Appeals for the Tenth Circuit found a violation of Title VI of the Civil Rights Act of 1964. Title VI provides that, “No person shall, on the basis of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or [*682] activity receiving federal financial assistance.” 

After SERNA, Congress passed the Equal Educational Opportunity Act: “No state shall deny equal educational opportunity to an individual on account of his or her race, color, sex or national origin by . . . the failure [of] an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs” (p.85).  

CASE REFERENCES:

BROWN v. BOARD of EDUCATION, 347 US 483 (1954). 

EEOC v. HACIENDA HOTEL, 881 F.2d 1504 (9^th Cir. 1989). 

ESCOBEDO v. ILLINOIS, 378 US 478 (1964). 

GARCIA v. GLOOR, 618 F.2d 264 (5^th Cir. 1980). 

GARZA v. SMITH, Civil Action No. SA-70-CA-169 (WD TX, 1970). 

HERNANDEZ v. NEW YORK, 500 US 352 (1991). 

HERNANDEZ v. TEXAS, 347 US 475 (1954). 

MEYER v. NEBRASKA, 262 US 390 (1923). 

MIRANDA v. ARIZONA, 384 US 436 (1966).  

PEOPLE v. ZAMORA, 66 Cal.App.2d 166 (1944). 

PEREZ v. FEDERAL BUREAU OF INVESTIGATION, 707 F.Supp. 891 (WD TX, 1988). 

PLYLER v. DOE, 457 US 202 (1982). 

SERNA v. PORTALES MUNICIPAL SCHOOLS, 499 F.2d 1147 (10^th Cir. 1974). 

YNIGUEZ v. ARIZONANS FOR OFFICIAL ENGLISH, 69 F.3d 920 (9^th  Cir. 1995) (en banc). *****************************************************

Copyright 2004 by the author, George Kiser.