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Supreme Court rules in Hernandez v. Texas, broadening civil rights laws


The Supreme Court issues a momentous ruling that clarified the way that the American legal system handled charges of discrimination. In Hernandez v. Texas, the Supreme Court unanimously ruled that the Fourteenth Amendment applied to all racial and ethnic groups facing discrimination, effectively broadening civil rights laws to include Hispanics and all other non-whites.

The defendant, Peter Hernandez, was a Mexican American agricultural laborer, part of the influx of such workers that had come to Texas during and after World War II. Hernandez was convicted of killing a man in cold blood in Jackson County, Texas, but his legal team, which was drawn mostly from one of the oldest Latino civil rights groups in the nation, the League of United Latin American Citizens, appealed. They pored through the records of jury selections in Jackson County, an area with a substantial Hispanic population, and found that not one of the roughly 6,000 jurors selected over the previous 25 years had a Hispanic last name. Citing the Fourteenth Amendment, which had been passed in 1868 and guaranteed equal protection under the law to all African Americans, Hernandez's lawyers claimed he had been deprived of equal protection because discrimination prevented him from being tried by a jury of his peers.

A Texas appeals court upheld Hernandez's conviction, but the case went to the Supreme Court. Lawyers for the State of Texas did not deny the charge of discrimination. Instead, they argued that such discrimination was not prohibited by the Fourteenth Amendment, stating that it applied only to African Americans. Writing on behalf of himself and the other eight justices, Chief Justice Earl Warren dismissed this notion, saying, "The Fourteenth Amendment is not directed solely against discrimination due to a 'two-class theory'—that is, based upon differences between 'white' and Negro."

The decision that the Fourteenth Amendment applied to all racial minorities, not just the one its authors had had in mind, has had immense consequences for the Hispanic community and every other minority group that has sought equal protection in the face of racial discrimination. As the civil rights movement progressed, Hernandez v. Texas ensured that every moment of legal progress for one minority was a victory for all.

READ MORE: The Mexican American Family Who Fought School Segregation 8 Years Before Brown v. Board of Ed


The Supreme Court Case that Got Right What Brown Got Wrong

Ian Haney Lopez, a law professor at the University of California at Berkeley, in the NYT (May 22, 2004):

With commemorations from coast to coast to remind them, most Americans already know that this week was the 50th anniversary of Brown v. Board of Education. Unfortunately, what they don't realize is that the country missed an equally important anniversary two weeks ago, that of Hernandez v. Texas — the perennially overshadowed antecedent to Brown that was decided on May 3, 1954.

That case merits commemoration not just because the Supreme Court used it to finally extend constitutional protection to Mexican-Americans, important though that is, especially now that Latinos are the largest minority group. It's worth celebrating because Hernandez got right something that Brown did not: the standard for when the Constitution should bar group-based discrimination.

Because both sides insisted that Mexican-Americans were white, Hernandez v. Texas forced the court to confront directly a question it would sidestep in Brown: under precisely what circumstances did some groups deserve constitutional protection? Hernandez offered a concise answer: when groups suffer subordination.

"Differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws," the court wrote. But, it said, "other differences from the community norm may define other groups which need the same protection." Succor from state discrimination, the court reasoned, should apply to every group socially defined as different and, implicitly, as inferior. "Whether such a group exists within a community is a question of fact," the court said, one that may be demonstrated "by showing the attitude of the community."

How, then, did the Texas community where Hernandez arose regard Mexican-Americans? Here the court catalogued Jim Crow practices: business and community groups largely excluded Mexican-Americans a local restaurant displayed a sign announcing "No Mexicans Served" children of Mexican descent were shunted into a segregated school and then forced out altogether after the fourth grade on the county courthouse grounds there were two men's toilets, one unmarked and the other marked "Colored Men" and "Hombres Aquí" ("Men Here").

The same sort of caste system that oppressed blacks in Texas also harmed Mexican-Americans. But it was Jim Crow as group subordination, rather than as a set of "racial" distinctions, that called forth the Constitution's concern in Hernandez v. Texas.


Opinion

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

JESUS C. HERNANDEZ, et al., PETITIONERS v.JESUS MESA, Jr.

On writ of certiorari to the united states court of appeals for the fifth circuit

Justice Alito delivered the opinion of the Court.

We are asked in this case to extend Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and create a damages remedy for a cross-border shooting. As we have made clear in many prior cases, however, the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new “context,” and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.

The facts of this tragic case are set forth in our earlier opinion in this matter, Hernández v. Mesa, 582 U. S. ___ (2017) (per curiam). Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández’s friends who had run onto the United States’ side of the culvert. After Hernández, who was also on the United States’ side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández one struck and killed him on the other side of the border.

Petitioners and Agent Mesa disagree about what Hernández and his friends were doing at the time of shooting. According to petitioners, they were simply playing a game, running across the culvert, touching the fence on the U. S. side, and then running back across the border. According to Agent Mesa, Hernández and his friends were involved in an illegal border crossing attempt, and they pelted him with rocks. 1

The shooting quickly became an international incident, with the United States and Mexico disagreeing about how the matter should be handled. On the United States’ side, the Department of Justice conducted an investigation. When it finished, the Department, while expressing regret over Hernández’s death, concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and it declined to bring charges or take other action against him. Mexico was not and is not satisfied with the U. S. investigation. It requested that Agent Mesa be extradited to face criminal charges in a Mexican court, a request that the United States has denied.

Petitioners, Hernández’s parents, were also dissatisfied

and therefore brought suit for damages in the United States District Court for the Western District of Texas. Among other claims, they sought recovery of damages under Bivens, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The District Court granted Mesa’s motion to dismiss, and the Court of Appeals for the Fifth Circuit sitting en banc has twice affirmed this dismissal.

On the first occasion, the court held that Hernández was not entitled to Fourth Amendment protection because he was “a Mexican citizen who had no ‘significant voluntary connection’ to the United States” and “was on Mexican soil at the time he was shot.” Hernandez v. United States, 785 F. 3d 117, 119 (CA5 2015) (per curiam). It further concluded that Mesa was entitled to qualified immunity on petitioners’ Fifth Amendment claim. Id., at 120.

After granting review, we vacated the Fifth Circuit’s decision and remanded the case, instructing the court “to consider how the reasoning and analysis” of Ziglar v. Abbasi, 582 U. S. ___ (2017), our most recent explication of Bivens, “[might] bear on this case.” Hernández, 582 U. S., at ___ (slip op., at 5). We found it “appropriate for the Court of Appeals, rather than this Court, to address the Bivens question in the first instance.” Ibid. And with the Bivens issue unresolved, we thought it “imprudent” to resolve the “sensitive” question whether the Fourth Amendment applies to a cross-border shooting. Ibid. In addition, while rejecting the ground on which the Court of Appeals had held that Agent Mesa was entitled to qualified immunity, we declined to decide whether he was entitled to qualified immunity on a different ground or whether petitioners’ claim was cognizable under the Fifth Amendment. Id., at ___–___ (slip op., at 5–6).

On remand, the en banc Fifth Circuit evaluated petitioners’ case in light of Abbasi and refused to recognize a Bivens claim for a cross-border shooting. 885 F. 3d 811 (CA5 2018). The court reasoned that such an incident presents a “ ‘new context’ ” and that multiple factors—including the incident’s relationship to foreign affairs and national security, the extraterritorial aspect of the case, and Congress’s “repeated refusals” to create a damages remedy for injuries incurred on foreign soil––counseled against an extension of Bivens. 885 F. 3d, at 816–823.

We granted certiorari, 587 U. S. ___ (2019), and now affirm.

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, the Court broke new ground by holding that a person claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim. The Court subsequently extended Bivens to cover two additional constitutional claims: in Davis v. Passman, 442 U. S. 228 (1979), a former congressional staffer’s Fifth Amendment claim of dismissal based on sex, and in Carlson v. Green, 446 U. S. 14 (1980), a federal prisoner’s Eighth Amendment claim for failure to provide adequate medical treatment. After those decisions, however, the Court changed course.

Bivens, Davis, and Carlson were the products of an era when the Court routinely inferred “causes of action” that were “not explicit” in the text of the provision that was allegedly violated. Abbasi, 582 U. S., at ___ (slip op., at 8). As Abbasi recounted:

“During this ‘ancien regime,’ . . . the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose . . . . Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself.” Ibid. (quoting Alexander v. Sandoval, 532 U. S. 275, 287 (2001) J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964)).

Bivens extended this practice to claims based on the Constitution itself. 582 U. S., at ___ (slip op., at 8) Bivens, 403 U. S., at 402 (Harlan, J., concurring in judgment) (Court can infer availability of damages when, “in its view, damages are necessary to effectuate” the “policy underpinning the substantive provisio[n]”).

In later years, we came to appreciate more fully the tension between this practice and the Constitution’s separation of legislative and judicial power. The Constitution grants legislative power to Congress this Court and the lower federal courts, by contrast, have only “judicial Power.” Art. III, §1. But when a court recognizes an implied claim for damages on the ground that doing so furthers the “purpose” of the law, the court risks arrogating legislative power. No law “ ‘pursues its purposes at all costs.’ ” American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 234 (2013) (quoting Rodriguez v. United States, 480 U. S. 522, 525–526 (1987) (per curiam)). Instead, lawmaking involves balancing interests and often demands compromise. See Board of Governors, FRS v. Dimension Financial Corp., 474 U. S. 361, 373–374 (1986). Thus, a lawmaking body that enacts a provision that creates a right or prohibits specified conduct may not wish to pursue the provision’s purpose to the extent of authorizing private suits for damages. For this reason, finding that a damages remedy is implied by a provision that makes no reference to that remedy may upset the careful balance of interests struck by the lawmakers. See ibid.

This problem does not exist when a common-law court, which exercises a degree of lawmaking authority, fleshes out the remedies available for a common-law tort. Analogizing Bivens to the work of a common-law court, petitioners and some of their amici make much of the fact that common-law claims against federal officers for intentional torts were once available. See, e.g., Brief for Petitioners 10–20. But Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938), held that “[t]here is no federal general common law,” and therefore federal courts today cannot fashion new claims in the way that they could before 1938. See Alexander, 532 U. S., at 287 (“ ‘Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals’ ”).

With the demise of federal general common law, a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress, see id., at 286 (“private rights of action to enforce federal law must be created by Congress”), and no statute expressly creates a Bivens remedy. Justice Harlan’s Bivens concurrence argued that this power is inherent in the grant of federal question jurisdiction, see 403 U. S., at 396 (majority opinion) id., at 405 (opinion of Harlan, J.), but our later cases have demanded a clearer manifestation of congressional intent, see Abbasi, 582 U. S., at ___–___ (slip op., at 10–12).

In both statutory and constitutional cases, our watchword is caution. For example, in Jesner v. Arab Bank, PLC, 584 U. S. ___, ___–___ (2018) (slip op., at 18–19) we expressed doubt about our authority to recognize any causes of action not expressly created by Congress. See also Abbasi, 582 U. S., at ___ (slip op., at 9) (“If the statute does not itself so provide, a private cause of action will not be created through judicial mandate”). And we declined to recognize a claim against a foreign corporation under the Alien Tort Statute. Jesner, 584 U. S., at ___ (slip op., at 29).

In constitutional cases, we have been at least equally reluctant to create new causes of action. We have recognized that Congress is best positioned to evaluate “whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government” based on constitutional torts. Abbasi, 582 U. S., at ___ (slip op., at 10). We have stated that expansion of Bivens is “a ‘disfavored’ judicial activity,” 582 U. S., at ___ (slip op., at 11) (quoting Ashcroft v. Iqbal, 556 U. S. 662, 675 (2009)), and have gone so far as to observe that if “the Court’s three Bivens cases [had] been . . . decided today,” it is doubtful that we would have reached the same result, 582 U. S., at ___ (slip op., at 11). And for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens. See 582 U. S., at ___ (slip op., at 23) Minneci v. Pollard, 565 U. S. 118 (2012) Wilkie v. Robbins, 551 U. S. 537 (2007) Correctional Services Corp. v. Malesko, 534 U. S. 61 (2001) FDIC v. Meyer, 510 U. S. 471 (1994) Schweiker v. Chilicky, 487 U. S. 412 (1988) United States v. Stanley, 483 U. S. 669 (1987) Chappell v. Wallace, 462 U. S. 296 (1983) Bush v. Lucas, 462 U. S. 367 (1983).

When asked to extend Bivens, we engage in a two-step inquiry. We first inquire whether the request involves a claim that arises in a “new context” or involves a “new category of defendants.” Malesko, 534 U. S., at 68. And our understanding of a “new context” is broad. We regard a context as “new” if it is “different in a meaningful way from previous Bivens cases decided by this Court.” Abbasi, 582 U. S., at ___ (slip op., at 16).

When we find that a claim arises in a new context, we proceed to the second step and ask whether there are any “ ‘ “special factors [that] counse[l] hesitation” ’ ” about granting the extension. Id., at ___ (slip op., at 12) (quoting Carlson, 446 U. S., at 18, in turn quoting Bivens, 403 U. S., at 396). If there are––that is, if we have reason to pause before applying Bivens in a new context or to a new class of defendants—we reject the request.

We have not attempted to “create an exhaustive list” of factors that may provide a reason not to extend Bivens, but we have explained that “central to [this] analysis” are “separation-of-powers principles.” Abbasi, 582 U. S., at ___ (slip op., at 12). We thus consider the risk of interfering with the authority of the other branches, and we ask whether “there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy,” id., at ___ (slip op., at 13), and “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed,” id., at ___ (slip op., at 12).

The Bivens claims in this case assuredly arise in a new context. Petitioners contend that their Fourth and Fifth Amendment claims do not involve a new context because Bivens and Davis involved claims under those same two amendments, but that argument rests on a basic misunderstanding of what our cases mean by a new context. A claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized. Compare Carlson, 446 U. S., at 16–18 (allowing Bivens remedy for an Eighth Amendment claim for failure to provide adequate medical treatment), with Malesko, 534 U. S., at 71–74 (declining to create a Bivens remedy in similar circumstances because the suit was against a private prison operator, not federal officials). And once we look beyond the constitutional provisions invoked in Bivens, Davis, and the present case, it is glaringly obvious that petitioners’ claims involve a new context, i.e., one that is meaningfully different. Bivens concerned an allegedly unconstitutional arrest and search carried out in New York City, 403 U. S., at 389 Davis concerned alleged sex discrimination on Capitol Hill, 442 U. S., at 230. There is a world of difference between those claims and petitioners’ cross-border shooting claims, where “the risk of disruptive intrusion by the Judiciary into the functioning of other branches” is significant. Abbasi, 582

U. S., at ___ (slip op., at 16) see Parts III–B and III–C, infra.

Because petitioners assert claims that arise in a new context, we must proceed to the next step and ask whether there are factors that counsel hesitation. As we will explain, there are multiple, related factors that raise warning flags.

The first is the potential effect on foreign relations. “The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.” Jesner, 584 U. S., at ___ (slip op., at 19). Indeed, we have said that “matters relating ‘to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.’ ” Haig v. Agee, 453 U. S. 280, 292 (1981) (quoting Harisiades v. Shaughnessy, 342 U. S. 580, 589 (1952)). “Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in [these matters].” Department of Navy v. Egan, 484 U. S. 518, 530 (1988). We must therefore be especially wary before allowing a Bivens remedy that impinges on this arena.

A cross-border shooting is by definition an international incident it involves an event that occurs simultaneously in two countries and affects both countries’ interests. Such an incident may lead to a disagreement between those countries, as happened in this case.

The United States, through the Executive Branch, which has “ ‘the lead role in foreign policy,’ ” Medellín v. Texas, 552 U. S. 491, 524 (2008) (alteration omitted), has taken the position that this incident should be handled in a particular way—namely, that Agent Mesa should not face charges in the United States nor be extradited to stand trial in Mexico. As noted, the Executive decided not to take action against Agent Mesa because it found that he “did not act inconsistently with [Border Patrol] policy or training regarding use of force.” DOJ Press Release. We presume that Border Patrol policy and training incorporate both the Executive’s understanding of the Fourth Amendment’s prohibition of unreasonable seizures and the Executive’s assessment of circumstances at the border. Thus, the Executive judged Agent Mesa’s conduct by what it regards as reasonable conduct by an agent under the circumstances that Mesa faced at the time of the shooting, and based on the application of those standards, it declined to prosecute. The Executive does not want a Mexican criminal court to judge Agent Mesa’s conduct by whatever standards would be applicable under Mexican law nor does it want a jury in a Bivens action to apply its own understanding of what constituted reasonable conduct by a Border Patrol agent under the circumstances of this case. Such a jury determination, the Executive claims, would risk the “ ‘ “embarrassment of our government abroad” through “multifarious pronouncements by various departments on one question.” ’ ” Brief for United States as Amicus Curiae 18 (quoting Sanchez-Espinoza v. Reagan, 770 F. 2d 202, 209 (CADC 1985) (Scalia, J.)).

The Government of Mexico has taken a different view of what should be done. It has requested that Agent Mesa be extradited for criminal prosecution in a Mexican court under Mexican law, and it has supported petitioners’ Bivens suit. In a brief filed in this Court, Mexico suggests that shootings by Border Patrol agents are a persistent problem and argues that the United States has an obligation under international law, specifically Article 6(1) of the International Covenant on Civil and Political Rights, Dec. 19, 1966, S. Treaty Doc. No. 95–20, 999 U. N. T. S. 174, to provide a remedy for the shooting in this case. Brief for Government of United Mexican States as Amicus Curiae 2, 20–22. Mexico states that it “has a responsibility to look after the well- being of its nationals” and that “it is a priority to Mexico to see that the United States provides adequate means to hold the agents accountable and to compensate the victims.” Id., at 3.

Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.

In the absence of judicial intervention, the United States and Mexico would attempt to reconcile their interests through diplomacy––and that has occurred. The broad issue of violence along the border, the occurrence of cross- border shootings, and this particular matter have been addressed through diplomatic channels. In 2014, Mexico and the United States established a joint Border Violence Prevention Council, and the two countries have addressed cross-border shootings through the United States-Mexico bilateral Human Rights Dialogue. 2 Following the Justice Department investigation in the present case, the United States reaffirmed its commitment to “work with the Mexican government within existing mechanisms and agreements to prevent future incidents.” DOJ Press Release.

For these reasons, petitioners’ assertion that their claims have “nothing to do with the substance or conduct of U. S. foreign . . . policy,” Brief for Petitioners 29, is plainly wrong. 3

Petitioners are similarly incorrect in deprecating the Fifth Circuit’s conclusion that the issue here implicates an element of national security.

One of the ways in which the Executive protects this country is by attempting to control the movement of people and goods across the border, and that is a daunting task. The United States’ border with Mexico extends for 1,900 miles, and every day thousands of persons and a large volume of goods enter this country at ports of entry on the southern border. 4 The lawful passage of people and goods in both directions across the border is beneficial to both countries.

Unfortunately, there is also a large volume of illegal

cross-border traffic. During the last fiscal year, approximately 850,000 persons were apprehended attempting to enter the United States illegally from Mexico, 5 and large quantities of drugs were smuggled across the border. 6 In addition, powerful criminal organizations operating on both sides of the border present a serious law enforcement problem for both countries. 7

On the United States’ side, the responsibility for attempting to prevent the illegal entry of dangerous persons and goods rests primarily with the U. S. Customs and Border Protection Agency, and one of its main responsibilities is to “detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States.” 6 U. S. C. §211(c)(5). While Border Patrol agents often work miles from the border, some, like Agent Mesa, are stationed right at the border and have the responsibility of attempting to prevent illegal entry. For these reasons, the conduct of agents positioned at the border has a clear and strong connection to national security, as the Fifth Circuit understood. 885 F. 3d, at 819.

Petitioners protest that “ ‘shooting people who are just walking down a street in Mexico’ ” does not involve national security, Brief for Petitioners 28, but that misses the point. The question is not whether national security requires such conduct––of course, it does not––but whether the Judiciary should alter the framework established by the political branches for addressing cases in which it is alleged that lethal force was unlawfully employed by an agent at the border. Cf. Abbasi, 582 U. S., at ___ (slip op., at 19) (explaining that “[n]ational-security policy is the prerogative of the Congress and President”).

We have declined to extend Bivens where doing so would interfere with the system of military discipline created by statute and regulation, see Chappell, 462 U. S. 296 Stanley, 483 U. S. 669, and a similar consideration is applicable here. Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate before extending Bivens into this field. See Abbasi, 582 U. S., at ___ (slip op., at 19) (“Judicial inquiry into the national-security realm raises ‘concerns for the separation of powers’ ” (quoting Christopher v. Harbury, 536 U. S. 403, 417 (2002))).

Our reluctance to take that step is reinforced by our survey of what Congress has done in statutes addressing related matters. We frequently “loo[k] to analogous statutes for guidance on the appropriate boundaries of judge-made causes of action.” Jesner, 584 U. S., at ___ (opinion of Kennedy, J.) (slip op., at 19). When foreign relations are implicated, it “is even more important . . . ‘to look for legislative guidance before exercising innovative authority over substantive law.’ ” Id., at ___ (slip op., at 20) (quoting Sosa v. Alvarez-Machain, 542 U. S. 692, 726 (2004)). Accordingly, it is “telling,” Abbasi, 582 U. S., at ___ (slip op., at 20), that Congress has repeatedly declined to authorize the award of damages for injury inflicted outside our borders.

A leading example is 42 U. S. C. §1983, which permits the recovery of damages for constitutional violations by officers acting under color of state law. We have described Bivens as a “more limited” “federal analog” to §1983. Hartman v. Moore, 547 U. S. 250, 254, n. 2 (2006). It is therefore instructive that Congress chose to make §1983 available only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” It would be “anomalous to impute . . . a judicially implied cause of action beyond the bounds [Congress has] delineated for [a] comparable express caus[e] of action.” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 736 (1975). Thus, the limited scope of §1983 weighs against recognition of the Bivens claim at issue here.

Section 1983’s express limitation to the claims brought by citizens and persons subject to United States jurisdiction is especially significant, but even if this explicit limitation were lacking, we would presume that §1983 did not apply abroad. See RJR Nabisco, Inc. v. European Community, 579 U. S. ___, ___ (2016) (slip op., at 7) (“Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application”). We presume that statutes do not apply extraterritorially to “ensure that the Judiciary does not erroneously adopt an interpretation of U. S. law that carries foreign policy consequences not clearly intended by the political branches.” Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 116 (2013) see also EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991).

If this danger provides a reason for caution when Congress has enacted a statute but has not provided expressly whether it applies abroad, we have even greater reason for hesitation in deciding whether to extend a judge-made cause of action beyond our borders. “[T]he danger of unwarranted judicial interference in the conduct of foreign policy is magnified” where “the question is not what Congress has done but instead what courts may do.” Kiobel, 569 U. S., at 116. Where Congress has not spoken at all, the likelihood of impinging on its foreign affairs authority is especially acute.

Congress’s treatment of ordinary tort claims against federal officers is also revealing. As petitioners and their amici stress, the traditional way in which civil litigation addressed abusive conduct by federal officers was by subjecting them to liability for common-law torts. See Brief for Petitioners 10–17. For many years, such claims could be raised in state or federal court, 8 and this Court occasionally considered tort suits against federal officers for extraterritorial injuries. See, e.g., Mitchell v. Harmony, 13 How. 115 (1852) (affirming award in trespass suit brought by U. S. citizen against U. S. Army officer who seized personal property in Mexico during the Mexican-American war). After Erie, federal common-law claims were out, but we recognized the continuing viability of state-law tort suits against federal officials as recently as Westfall v. Erwin, 484 U. S. 292 (1988).

In response to that decision, Congress passed the so-called Westfall Act, formally the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U. S. C. §2679. That Act makes the Federal Tort Claims Act (FTCA) “the exclusive remedy for most claims against Government employees arising out of their official conduct.” Hui v. Castaneda, 559 U. S. 799, 806 (2010). 9 Thus, a person injured by a federal employee may seek recovery directly from the United States under the FTCA, but the FTCA bars “[a]ny claim arising in a foreign country.” §2680(k). 10 The upshot is that claims that would otherwise permit the recovery of damages are barred if the injury occurred abroad.

Yet another example is provided by the Torture Victim Protection Act of 1991, note following 28 U. S. C. §1350, which created a cause of action that may be brought by an alien in a U. S. court under the Alien Tort Statute, §1350. Under the Torture Victim Protection Act, a damages action may be brought by or on behalf of a victim of torture or an extrajudicial killing carried out by a person who acted under the authority of a foreign state. Consequently, this provision, which is often employed to seek redress for acts committed abroad, 11 cannot be used to sue a United States officer. See Meshal v. Higgenbotham, 804 F. 3d 417, 430 (CADC 2015) ( K avanaugh, J., concurring).

These statutes form a pattern that is important for present purposes. When Congress has enacted statutes creating a damages remedy for persons injured by United States Government officers, it has taken care to preclude claims for injuries that occurred abroad.

Instead, when Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate. Thus, the Foreign Claims Act, 10 U. S. C. §2734, first enacted during World War II, ch. 645, 55 Stat. 880, allows the Secretary of Defense to appoint claims commissions to settle and pay claims for personal injury and property damage resulting from the noncombat activities of the Armed Forces outside this country. §2734(a). Similarly, §2734a allows the Secretary of Defense and the Secretary of Homeland Security to make payments pursuant to “an international agreement which provides for the settlement or adjudication and cost sharing of claims against the United States” that arise out of “acts or omissions” of the Armed Forces. §2734a(a) see also 22 U. S. C. §2669(b) (State Department may settle and pay certain claims for death, injury, or property loss or damage “for the purpose of promoting and maintaining friendly relations with foreign countries”) §2669–1 (Secretary of State has authority to pay tort claims arising in foreign countries in connection with State Department operations) 21 U. S. C. §904 (Attorney General has authority to pay tort claims arising in connection with the operations of the Drug Enforcement Administration abroad).

This pattern of congressional action—refraining from authorizing damages actions for injury inflicted abroad by Government officers, while providing alternative avenues for compensation in some situations—gives us further reason to hesitate about extending Bivens in this case.

In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern––respect for the separation of powers. See Abbasi, 582 U. S., at ___ (slip op., at 12). “Foreign policy and national security decisions are ‘delicate, complex, and involve large elements of prophecy’ for which ‘the Judiciary has neither aptitude, facilities[,] nor responsibility.’ ” Jesner, 584 U. S., at ___ ( Gorsuch , J., concurring part and concurring in judgment) (slip op., at 5) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948)). To avoid upsetting the delicate web of international relations, we typically presume that even congressionally crafted causes of action do not apply outside our borders. These concerns are only heightened when judges are asked to fashion constitutional remedies. Congress, which has authority in the field of foreign affairs, has chosen not to create liability in similar statutes, leaving the resolution of extraterritorial claims brought by foreign nationals to executive officials and the diplomatic process.

Congress’s decision not to provide a judicial remedy does not compel us to step into its shoes. “The absence of statutory relief for a constitutional violation . . . does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.” Schweiker, 487 U. S., at 421–422 see also Stanley, 483 U. S., at 683 (“[I]t is irrelevant to a ‘special factors’ analysis whether the laws currently on the books afford [plaintiff] an ‘adequate’ federal remedy for his injuries”). 12

When evaluating whether to extend Bivens, the most important question “is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts?” Abbasi, 582 U. S., at ___ (slip op., at 12) (quoting Bush, 462 U. S., at 380). The correct “answer most often will be Congress.” 582 U. S., at ___ (slip op., at 12). That is undoubtedly the answer here.

The judgment of the United States Court of Appeals for the Fifth Circuit is affirmed.

Notes

1 See App. to Pet. for Cert. 198–199 Dept. of Justice, Federal Officials Close Investigation Into the Death of Sergio Hernandez-Guereca (Apr. 27, 2012), https://www.justice.gov/opa/pr/federal-officials-close- investigation-death-sergio-hernandez-guereca (hereinafter DOJ Press Release).

2 See Dept. of Homeland Security, Written Testimony for House Comm. on Oversight and Govt. Reform Hearing (Sept. 9, 2015), https: / / www .dhs.gov/news/2015/09/09/written-testimony-dhs-southern-border-and-approaches-campaign-joint-task-force-west (discussing creation of Border Violence Prevention Council) Dept. of Homeland Security, Border Violence Prevention Council Fact Sheet, https://www.dhs. gov/sites/default/files/publications/bvpc-fact-sheet.pdf (outlining areas of collaboration) Dept. of State, Joint Statement on the U. S.-Mexico Bilateral High Level Dialogue on Human Rights (Oct. 27, 2016), https://2009-2017.state.gov/r/pa/prs/ps/2016/10/263759.htm (noting discussion of “the use of force at the border”).

3 It is no answer to argue, as Mexico does, that refusing to extend Bivens “is what [would] negatively affect international relations.” Brief for Government of United Mexican States as Amicus Curiae 12. When a third party intervenes and takes sides in a dispute between two countries, one country is likely to be pleased and the other displeased. But no matter which side the third party supports, it will have injected itself into their relations.

4 See Dept. of Transp., Bureau of Transp. Statistics, Border Crossing/ Entry Data, https://explore.dot.gov/views/BorderCrossingData/Monthly (detailing the millions of individuals and vehicles that cross the U. S.-Mexico border each month) U. S. Int’l Trade Comm’n, The Year in Trade 2018, p. 190 (USITC Pub. No. 4986, 2019) (explaining that in 2018 the United States imported $346.5 billion of goods from Mexico).

5 Dept. of Homeland Security, U. S. Customs and Border Protection, Southwest Border Migration FY 2019, https://cbp.gov/newsroom/ stats/sw-border-migration/fy-2019.

6 Dept. of Homeland Security, U. S. Customs and Border Protection, CBP Enforcement Statistics FY2019, https://cbp.gov/newsroom/ stats/cbp-enforcement-statistics-fy2019 (explaining that in FY2019, Border Patrol officers seized 11,682 pounds of cocaine, 266,882 pounds of marijuana, and 14,434 pounds of methamphetamine).

7 Cong. Research Serv., Mexico: Organized Crime and Drug Trafficking Organizations, Summary (2019) (“Mexican drug trafficking organizations . . . pose the greatest crime threat to the United States”) Dept. of Justice, Drug Enforcement Admin., 2018 National Drug Threat Assessment 97 (DEA–DCT–DIR–032–18) (explaining that “Mexican [transnational criminal organizations] . . . maintain the greatest drug trafficking influence in the United States”).

8 State-law claims could be asserted in federal court if the parties’ citizenship was diverse, and federal common-law claims could be raised until Erie R. Co. v. Tompkins, 304 U. S. 64 (1938).

9 The Act also permits claims “brought for a violation of the Constitution.” 28 U. S. C. §2679(b)(2)(A). By enacting this provision, Congress made clear that it was not attempting to abrogate Bivens, but the provi-sion certainly does not suggest, as one of petitioners’ amici contends, that Congress “intended for a robust enforcement of Bivens remedies.” Brief for Institute for Justice as Amicus Curiae 21. Instead, the provision simply left Bivens where it found it. It is not a license to create a new Bivens remedy in a context we have never before addressed, see Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001).

10 Petitioners contend that Congress excluded claims arising abroad in order to avoid subjecting the United States to liability under foreign law, something that cannot occur under Bivens. Reply Brief 11. But neither the legislative history recounted in Sosa v. Alvarez-Machain, 542 U. S. 692, 707 (2004), nor anything else offered by petitioners shows that this was the only reason for this limitation. And the fact remains that the FTCA does not permit claims for torts committed abroad, a limitation that is consistent with Congress’s general practice of avoiding extraterritorial legislation. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 115–116 (2013).

11 See, e.g., Samantar v. Yousuf, 560 U. S. 305, 308 (2010) (bringing claim under the Torture Victim Protection Act against the former First Vice President and Minister of Defense of Somalia for alleged torture and extrajudicial killing in Somalia).

12 Indeed, in Abbasi we explained that existence of alternative remedies was merely a further reason not to create Bivens liability. See 582 U. S., at ___ (slip op., at 22) (“[W]hen alternative methods of relief are available, a Bivens remedy is usually not”).


Hernandez v. Texas (1954)

Pete Hernandez, a migrant worker, was tried for the murder of his employer, Joe Espinosa, in Edna, Texas, in 1950. Hernandez was convicted by an all-white jury. His lawyers appealed. They argued that Hernandez was entitled to a jury “of his peers” and that systematic exclusion of Mexican Americans violated constitutional law. In a unanimous decision, the United States Supreme Court ruled that Mexican Americans—and all “classes”—were entitled to the “equal protection” articulated in the Fourteenth Amendment.

The petitioner, Pete Hernandez, was indicted for the murder of one Joe Espinosa by a grand jury in Jackson County, Texas. He was convicted and sentenced to life imprisonment. The Texas Court of Criminal Appeals affirmed the judgment of the trial court. Prior to the trial, the petitioner, by his counsel, offered timely motions to quash the indictment and the jury panel. He alleged that persons of Mexican descent were systematically excluded from service as jury commissioners, grand jurors, and petit jurors, although there were such persons fully qualified to serve residing in Jackson County. The petitioner asserted that exclusion of this class deprived him, as a member of the class, of the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution. …

In numerous decisions, this Court has held that it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury, or before a petit jury, from which all persons of his race or color have, solely because of that race or color, been excluded by the State, whether acting through its legislature, its courts, or its executive or administrative officers. Although the Court has had little occasion to rule on the question directly, it has been recognized since Strauder v. State of West Virginia, that the exclusion of a class of persons from jury service on grounds other than race or color may also deprive a defendant who is a member of that class of the constitutional guarantee of equal protection of the laws. The State of Texas would have us hold that there are only two classes–white and Negro–within the contemplation of the Fourteenth Amendment. The decisions of this Court do not support that view. And, except where the question presented involves the exclusion of persons of Mexican descent from juries, Texas courts have taken a broader view of the scope of the equal protection clause.

Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. 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.

… The exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment. …

The petitioner’s initial burden in substantiating his charge of group discrimination was to prove that persons of Mexican descent constitute a separate class in Jackson County, distinct from “whites.” One method by which this may be demonstrated is by showing the attitude of the community. Here the testimony of responsible officials and citizens contained the admission that residents of the community distinguished between “white” and “Mexican.” The participation of persons of Mexican descent in business and community groups was shown to be slight. Until very recent times, children of Mexican descent were required to attend a segregated school for the first four grades. At least one restaurant in town prominently displayed a sign announcing “No Mexicans Served.” On the courthouse grounds at the time of the hearing, there were two men’s toilets, one unmarked, and the other marked “Colored Men” and “Hombres Aqui” (“Men Here”). …

Having established the existence of a class, petitioner was then charged with the burden of proving discrimination. To do so, he relied on the pattern of proof established by Norris v. State of Alabama. In that case, proof that Negroes constituted a substantial segment of the population of the jurisdiction, that some Negroes were qualified to serve as jurors, and that none had been called for jury service over an extended period of time, was held to constitute prima facie proof of the systematic exclusion of Negroes from jury service. This holding, sometimes called the “rule of exclusion,” has been applied in other cases, and it is available in supplying proof of discrimination against any delineated class.

The petitioner established that 14% of the population of Jackson County were persons with Mexican or Latin American surnames, and that 11% of the males over 21 bore such names. The County Tax Assessor testified that 6 or 7 percent of the freeholders on the tax rolls of the County were persons of Mexican descent. The State of Texas stipulated that “for the last twenty-five years there is no record of any person with a Mexican or Latin American name having served on a jury commission, grand jury or petit jury in Jackson County.” The parties also stipulated that “there are some male persons of Mexican or Latin American descent in Jackson County who, by virtue of being citizens, freeholders, and having all other legal prerequisites to jury service, are eligible to serve as members of a jury commission, grand jury and/or petit jury.”

To say that this decision revives the rejected contention that the Fourteenth Amendment requires proportional representation of all the component ethnic groups of the community on every jury ignores the facts. The petitioner did not seek proportional representation, nor did he claim a right to have persons of Mexican descent sit on the particular juries which he faced. His only claim is the right to be indicted and tried by juries from which all members of his class are not systematically excluded–juries selected from among all qualified persons regardless of national origin or descent. To this much, he is entitled by the Constitution.


A Class Apart

In 1951 in the town of Edna, Texas, a field hand named Pedro Hernández murdered his employer after exchanging words at a gritty cantina. From this seemingly unremarkable small-town murder emerged a landmark civil rights case that would forever change the lives and legal standing of tens of millions of Americans. A team of unknown Mexican American lawyers took the case, Hernandez v. Texas, all the way to the Supreme Court, where they successfully challenged Jim Crow-style discrimination against Mexican Americans.

AMERICAN EXPERIENCE presents A Class Apart from the award-winning producers Carlos Sandoval (Farmingville), and Peter Miller (Sacco and Vanzetti, The Internationale). The one-hour film dramatically interweaves the story of its central characters— activists and lawyers, returning veterans and ordinary citizens, murderer, and victim — within the broader story of a civil rights movement that is still very much alive today.

The film begins with the little known history of Mexican Americans in the United States. In 1848, the Mexican-American War came to an end. For the United States, the victory meant ownership of large swaths of Mexican territory. The tens of thousands of residents living on the newly annexed land were offered American citizenship as part of the treaty to end the war. But as time evolved it soon became apparent that legal citizenship for Mexican Americans was one thing, equal treatment would be quite another.

“Life in the 1950s was very difficult for Hispanics,” Wanda García, a native of Corpus Christi, explains in the film. “We were considered second-rate, we were not considered intelligent. We were considered invisible.”

In the first 100 years after gaining U.S. citizenship, many Mexican Americans in Texas lost their land to unfamiliar American laws, or to swindlers. With the loss of their land came a loss of status, and within just two generations, many wealthy ranch owners had become farm workers. After the Civil War, increasing numbers of Southern whites moved to south Texas, bringing with them the rigid, racial social code of the Deep South, which they began to apply not just to blacks, but to Mexican Americans as well.

Widespread discrimination followed Latinos from schoolhouses and restaurants to courthouses and even to funeral parlors, many of which refused to prepare Mexican American bodies for burial. During World War II, more than 300,000 Mexican Americans served their country expecting to return home with the full citizenship rights they deserved. Instead, the returning veterans, many of them decorated war heroes, came back to face the same injustices they had experienced all their lives.

Latino lawyers and activists were making progress at state levels, but they knew that real change could only be achieved if Mexican Americans were recognized by the 14th Amendment of the U.S. Constitution — something that could only be accomplished by bringing a case to the Supreme Court.

In his law office in San Antonio, a well-known attorney named Gus García listened to the desperate pleas of Pedro Hernández’s mother, who traveled more than one hundred and fifty miles to ask him to defend her son. García quickly realized that there was more to this case than murder. The real concern was not Hernández’s guilt, but whether he could receive a fair trial with an all-Anglo jury deciding his fate.

García assembled a team of courageous attorneys who argued on behalf of Hernández from his first trial at the Jackson County Courthouse in Texas all the way to Washington, DC. It would be the first time a Mexican American appeared before the Supreme Court.

The Hernandez lawyers decided on a daring but risky legal strategy, arguing that Mexican Americans were “a class apart” and did not neatly fit into a legal structure that recognized only black and white Americans. As legal skirmishes unfolded, the lawyers emerged as brilliant, dedicated, humorous, and at times, terribly flawed men.

“They took a gamble,” says University of California-Berkeley professor of law Ian Haney-López in the film. “They knew, on the up side, that they could win national recognition for the equality of Mexican Americans, but they knew, on the down side, that if they lost, they would establish at a national level the proposition that Mexican Americans could be treated as second class citizens.”

The Hernandez case struck a chord with Latinos across the country. When funds to try the case ran out, the Mexican American community donated to the cause in any way they could, despite limited resources.

“They would come up to me and they would give you crumpled-up dollar bills and they’d give you coins. These were people who couldn’t afford it, but couldn’t afford not to,” recalled attorney Carlos Cadena, Gus García’s partner in the case.

On January 11, 1954, García and Cadena faced the nine justices of the U.S. Supreme Court. Cadena opened the argument. “Can Mexican Americans speak English?” one justice asked. “Are they citizens?” asked another. The lack of knowledge stunned Gus García, who stood up and delivered the argument of his life. Chief Justice Earl Warren allowed him to continue a full sixteen minutes past the allotted time, a concession a witness noted had not been afforded to any other civil rights lawyer before García, including the renowned NAACP attorney Thurgood Marshall.

On May 3, 1954, the U.S. Supreme Court announced its ruling in the case of Hernandez v. Texas. Pedro Hernández would receive a new trial — and would be judged by a true jury of his peers. The court’s legal reasoning: Mexican Americans, as a group, were protected under the 14th Amendment, in keeping with the theory that they were indeed “a class apart.”

“The Hernandez v. Texas story is a powerful reminder of one of many unknown yet hard-fought moments in the civil rights movement,” says AMERICAN EXPERIENCE executive producer Mark Samels. “It’s easy to forget how far the country has come in just fifty years, reshaping our democracy to include all Americans.”

Credits

Original Music
Steven Schoenberg

Photographs
Featuring Photographs by Russell Lee
From The “Study of The Spanish-Speaking People of Texas”
Courtesy of The Center For American History,
University of Texas, Austin

Associate Editor
Paul Docherty

Sound Recordist
Peter Miller

Additional Sound
Garrett Guidera
Michael Jordi Valdés

Additonal Camera
Jeffrey Mills

Production Managers
Leonora Rodkin
Renee Silverman

Production Assistants
Kirk Carapezza
Scott Lowe
Duncan Moore

Interns
Ana Maria Benedetti
Daniel Braun
Brianna Brown
Bart Cartwright
Katherine Picard
Andre Sandoval

Production Stills
Michael Jordi Valdés

Transcripts
Marci Juett
Media Transcripts, Inc.

Additional Research
Maria E. Gonzalez
Elisabeth M. Hartjens, Imagefinders

Bookkeeper
Nanci Bradshaw

Insurance
Janice Brown, Ventura Insurance

Post-Production Facility
Glue Editing & Design, NYC

On-Line Editor/Colorist
Steve Pequignot

Sound Design and Mix
Evan Benjamin

Dialogue Editor
Marlena Grzaslewicz

Advisory Board
Adriana Bosch
Ignacio García
Laura Gómez
Ian Heney López
Thomas H. Kreneck
Michael A. Olivas
Lisa Ramos

Gloria Villa Cadena, Wife of Carlos Cadena
Norma Cantú, Professor
Ramiro Casso, M.D., Texas Resident
James Deanda, Attorney
Oralia Espinosa, Daughter
Henry Flores, Political Scientist
Ignacio M. García, Historian
Wanda García, Texas Resident
Carlos Guerra, Journalist
Ian Haney-López, Professor
Juan Hernández, Nephew of Pete Hernández
Mike Herrera, Son of John Herrera
Benny Martínez, Texas Resident
Eleanor Mccusker, Wife of Gus García
Michael Olivas, Professor
Lisa Ramos, Historian
Victor Rodríguez, Texas Resident
Bob Sánchez, Attorney
Martha Tevis, Professor

Archival Footage
National Archives
John E. Allen
Getty Images
Historic Films
Michael Carroll / Estate of E.C. La Bauve
Macdonald & Associates
National Council of La Raza
York Associates, Collection of The Supreme Court of The United States

Archival Photos And Artwork
Russell Lee Photograph Collection
“Study of The Spanish Speaking People of Texas”
Robert Runyon Photograph Collection
Courtesy of The Center For American History, University of Texas At Austin
Dr. Hector P. García Papers, Special Collections & Archives, Texas A & M University – Corpus Christi, Bell Library
John J. Herrera Collection, Houston Metropolitan Research Center, Houston Public Library, Houston Texas
San Antonio Light Collection, UTSA’s Institute of Texan Cultures, Courtesy of The Hearst Corporation
Abdon Daoud Ackad, Collection of The Supreme Court of The United States
Pica 15074, Austin History Center, Austin Public Library
Personal Collection of Roy Barrera
Beyond The Barcode Productions, M. Jordi Valdés
1938 Cactus Yearbook / Texas Student Media
The Family of Carlos Cadena
Michael Carroll / Estate of E.C. La Bauve
Adela Longoria Cerra
Chicago Tribune
Detroit Free Press
The American Newspaper Repository Collection
Rare Book, Manuscript, and Special Collections Library,
Duke University, Durham, North Carolina
Tino And Millie Duran, Publishers, La Prensa
Delores Espinosa
The Hearst Corporation
Frank Lerner
Lyndon Baines Johnson Library
Library of Congress
Los Angeles Public Library: Security Pacific Collection
Shades Of L.A. Archives
Los Angeles Times
Benny Martinez
Mayflower Hotel
Eleanor McCusker
National Archives
Restonpaths.Com
Rosie Salinas – Niece/Hernández Family Consultant
San Antonio Conservation Society Foundation
Texas State Library & Archives Commission
088-0062. Loaned by John Wildenthal Family
082-0416. Loaned by Virginia Sturges
Harry S. Truman Library
Los Angeles Times Collection, UCLA Library Department of Special Collections
Special Collections, The Univ. of Texas at Arlington
UTSA’s Institute of Texan Cultures at San Antonio

Musicians
T-Bone Wolk – Accordion, Electric Bass
Jeffrey Holmes – Trumpet, Piano
Freddie Bryant – Guitars
José González – Guitars
Michael Nix – Guitars
Mark Cohen – Guitar
Jim Kaminski – Lap Steel Guitar
Doug Plavin – Percussion
Steven Schoenberg – Piano, Synthesizers
Paul Kochanski – Acoustic and Electric Bass
Chris Devine – Violin
Greg Snedeker – Violincello
Salvatore Macchia – Contrabass

Music Recorded at Avocet Recording Studios, Shelburne, MA
Joe Podlesny, Engineer
Norman Blain, Engineer

Music Mixed by Norman Blain
Music Produced by Steven Schoenberg

Very Special Thanks
Michael Hampton
Valerie Marcus

Special Thanks
Town of Edna, Texas
Eddie Aldrete
Joe Anderson
Elisabeth Avery
Staff of The Benson Latin American Collection
Roy Berrera, Jr.
Brackenridge Plantation
Teddy Cañez
Grace Charles
Peggy And Frank Condron
James Cousar and Family
Virginia Diaz
Patti Elizondo
Rick Ferguson
Neil Foley
Hector Galan
The Galvan Family
Carla García Connolly
Mauro García
Francisco Guajardo
Margo Gutiérrez
Mary Mead Hammond
Woody Hernández
Gayla Jameson
Kevin Johnson
Sara & Steven Katz Family
Mary Lampe
Patrick Lemelle
George Martinez
Drew Mayer-Oakes
Anna Miller
Nora Miller
Lynn Novick
David Rojas, Homestead Suites, Houston
Alfred Rosa
St. Mary’s University
San Antonio Film Commission
Scottish Rite Library and Museum in San Antonio, TX
Clare Sheridan
Joe Speed
Supreme Court Of The United States
Tarlton Law Library, UT Austin
Tenampa Bar
The Texana Museum
Texas State Archives
Emily Todd
University Of Houston Law Center
Victor Valdés
Crystal Valencia
Janet Vasquez
Debra Vega
Victoria County Courthouse
James Villarreal
White-Neisser Family
Emilio Zamora

National Outreach Campaign Sponsor
Active Voice

Fiscal Sponsors
Southwest Alternate Media Project
Video Association of Dallas
Independent Feature Project

In Memoriam
James Deanda
Gloria Villa Cadena
Pauline Rosa

For American Experience

Post Production
Vanessa Ezersky
Glenn Fukushima
Greg Shea

Series Designer
Alison Kennedy

On-Line Editor
Spencer Gentry

Sound Mix
John Jenkins

Production Manager
Nancy Sherman

Web
Molly Jacobs
Tory Starr

Legal
Jay Fialkov
Janice Flood
Maureen Jordan
Scott Kardel

Project Administration
Susana Fernandes
Pamela Gaudiano
Pat Yusah

Marketing and Communications
Lauren Noyes

Project Manager
Lauren Prestileo

Series Manager
James E. Dunford

Coordinating Producer
Susan Mottau

Senior Editor
Paul Taylor

Series Producer
Susan Bellows

Senior Producer
Sharon Grimberg

For ITVS – Executive Producer
Sally Jo Fifer

For LPB – Executive Producer
Patricia Boero

Executive Producer
Mark Samels

A Co-Production Of Camino Bluff Productions, Inc. and The Independent Television Service (ITVS), in association with Latino Public Broadcasting (LPB) for American Experience.

This Program was Produced by Camino Bluff Productions, Inc., which Is solely responsible for its content.

© 2009, Camino Bluff Productions, Inc. All Rights Reserved.

Transcript

Narrator: It happened in the small town of Edna Texas, the distraught woman told lawyer Gus García. Her son, Pete Hernández had been charged with murder.

“I accepted because I could not resist her tearful pleadings,” Garcia recalled, “and because I decided that we had an excellent opportunity to make this a test case.”

García knew the law, and he knew East Texas. He knew that the defendant’s fate would ultimately rest in the hands of an all-Anglo jury – a jury from which Mexican Americans would be systematically excluded.

The case, Hernandez v. Texas, would make an unlikely journey, all the way to the nation’s highest court.

Michael Olivas: It was an unusual ambition to take a case to the US Supreme Court. No Mexican Americans had ever tried a case in the US Supreme Court. They had no reason to believe that they would win.

Narrator: Garcia and his colleagues had a client who was by all accounts guilty — and a risky strategy that dared to put a crucial element of Mexican American identity on trial.

Lisa Ramos: I think many Mexican Americans were afraid, “What would happen if we weren’t considered white?

Narrator: What the Hernandez legal team was attempting was unprecedented – and had the potential to transform the lives of millions of Americans.

Ian Haney-Lopez: Hernandez v. Texas belongs in the pantheon of great civil rights cases. But even more important, it belongs in the pantheon of great moments in American history.

Wanda García: Life in the 1950’s was very difficult for Hispanics. We were considered second rate, we were not considered intelligent. We were considered invisible.

Bob Sánchez: It was overt discrimination, and not just, “You can’t belong to my country club” type, you know, but the … the real rough type. In theaters, in swimming pools, even in some public parks, we were segregated, something … something awful really.

Carlos Guerra: It got to the point where a restaurant association, put out a sign that said “No Mexicans, Niggers or Dogs Allowed.”

Narrator: Discrimination had become a harsh fact of Mexican American life over the one hundred years since the end of the Mexican War.

In 1848, the victorious United States acquired huge swaths of Mexican territory, and along with it, tens of thousands of residents who were offered American citizenship as part of the treaty ending the war.
Legal citizenship for Mexican Americans was one thing equal treatment turned out to be quite another.
Many would lose their land to unfamiliar American laws, or to swindlers. With the loss of land came the loss of status.

Carlos, Guerra: Over two-three generations, the people who had owned vast ranches were suddenly farm workers.

After the Civil War, ever-larger numbers of Southern whites came into south Texas. All of a sudden you start seeing allegations that are cloned from the attitudes that they had in the Deep South about black people and see these values being applied to Mexicans … to Mexican Americans. “They’re shiftless. They’re lazy. They’re dumb. They don’t like to work,” and, you know, “They’re tryin’ to get your daughter.”

Narrator: Of mixed Spanish and Indian ancestry, Mexican Americans did not fit neatly into America’s ironclad racial categories, black or white. By the early 20th Century, they were considered white by law, largely owing to the treaty’s grant of American citizenship – but inz everyday life their status as citizens meant little.

Benny Martínez: A lotta Mexicans were killed for no reason at all! A lot of 'em were lynched, and a lot of 'em were just shot. Anybody with a cowboy hat then could be a ranger or a vigilante or a regulator.

Narrator: Segregation was widespread, enforced not by written laws – as was the case for African Americans – but by a rigid social code.

Michael Olivas: It was very clear that the social isolation was a perfectly symmetrical system, one that hermetically sealed Mexicans and blacks away from whites in all the daily aspects of life.

Wanda García: When we moved in the neighbors started getting upset. The kids would come on their bicycles and call us ‘dirty Mexicans, you eat toilets’. One time I said something really nasty to one of them and the father of this kid came up and asked me to step off the sidewalk so he could hit me.

Narrator: Discrimination followed to the grave. Cemeteries were segregated. Many funeral parlors even refused to prepare Mexican American bodies for burial.

Victor Rodríguez: So for the most part if you died, and if you were Hispanic, you had to be buried pretty quickly after you died so that you wouldn’t create a smell.

Narrator: In education, as in many other spheres, separate and unequal treatment was commonplace.

Benny Martínez: Our school were old schools. They were dilapidated. We had no toilet facilities inside. We had an outhouse. The Anglo children had a nice school, a modern school with indoor plumbin’ and heating so there was quite a difference. Quite a difference.

Narrator: Second-class treatment exacted a heavy toll.

Benny Martínez: They were always referring to us as “dirty Mexicans.” They called us “pepper belly.” They called us “greasers.” They called us “wet back.” They made us feel ashamed to be a Mexican American.

Ignacio García: And as long as Mexican Americans believed that they couldn’t do anything about that, then they in a sense reinforce the system, the social stratification that occurred in their lives.

Narrator: Then came World War Two. Three hundred thousand Mexican Americans served their country. They suffered casualties and earned honors disproportionate to their numbers. They returned home with dramatically raised expectations, believing they had earned the right to first class citizenship.

Dr Ramiro Casso: We went to fight to give people liberty and to give them their civil rights, and then we come back home and we find that it is the same way as we left it!

Carlos Guerra: A great many people, came home expecting that they had won their full citizenship rights. When they come home and they’re decorated war heroes and they’re turned away from restaurants or told to go to the balconies of theaters, it created a building resentment. When their kids were not allowed to go to the good schools, it created a great deal of resentment.

Narrator: The treatment of Private Felix Longoria, a war hero killed in the Philippines, became a flashpoint. When his body was returned to his hometown of Three Rivers, Texas, in early 1949, the town’s only funeral parlor refused to hold a memorial service – because, they told Longoria’s widow, “the whites wouldn’t like it.”

Dr Ramiro Casso: This guy gave his life so that we could have the same rights and privileges that are available to everybody, and he couldn’t be buried with the whites because he was brown? What the hell?

Ignacio García: And it it really hits a nerve in the nation in particular with many veteran groups who say how can they not allow him to be buried.

Narrator: For Mexican Americans, the Longoria incident came at a crucial time. Since the twenties, civic organizations such as LULAC – the League of United Latin American Citizens – had begun pushing for civil rights, with some success. Now, emboldened by their war experience and growing political clout, Mexican American activists pressed demands for broader change. After an intense public campaign, Felix Longoria was buried in Arlington National Cemetery.

Ian Haney-López: And it’s this generation who fought in World War Two who begin to demand civil rights for Mexican Americans. They form important social organizations like the G.I. Forum. These organizations are committed to fighting for equality for Mexican Americans as well as to fighting for pride in Mexican origins.

Narrator: The activists also took their fight to the courts. With the help of lawyers like Gus García and his colleague Carlos Cadena, both veterans, they began to attack the legal foundations of discrimination throughout the Southwest.

García led a team that won a court order curtailing the segregation of Hispanic students in Texas schools. Cadena won a ruling that ended restrictive covenants barring Mexican Americans from buying homes in Anglo neighborhoods. But those victories could only take Mexican Americans so far.

Ian Haney-López: Mexican American lawyers had achieved some successes on the state level, but the bottom line was the local majorities in these states were intent on treating Mexican Americans as second class citizens. If they were to be fully protected, if they were to be regarded as equal with other Americans, they would need to receive the protection of the Constitution. They would need to take their cases to the US Supreme Court.

Narrator: The lawyers faced an uphill battle. They knew that Mexican Americans had been denied the protection of the Constitution’s Fourteenth Amendment, an essential weapon for African Americans in their fight against discrimination. Some states had argued that the amendment only barred discrimination by whites against blacks – and by law, Mexican Americans were considered white.

To end the discrimination that stifled their community, they would need to find the right case – one with the potential to redefine the very meaning of the United States Constitution.

Narrator: On August 4, 1951, on the streets of Edna, Texas, the locals were taking advantage of a steamy day off. A tenant farmer named Caetano Espinosa, known to everyone as Joe, headed to Chencho Sánchez’s café on Menefee Street. Pedro Hernández, a field worker with a bad leg, was already inside.

Oralia Espinosa: It was a Saturday and I think it was my father’s birthday. And as we passed Edna he said, “I’m going to stop here to talk to the cotton pickers.”

Victor Rodríguez: I sat there at a table, and I ordered a Coke. And, ah all of a sudden I heard an argument. Joe Espinosa arguing with Pete … with Pedro. And when I heard the argument, I heard something to the effect that, Pedro el chueco cabrón, no woman is going to look at a cripple like you. They’re interested in a real he-man like me. And with that, Pedro left the cantina.

Juan Hernández: And we saw Pete walking towards his house. It was like he was in a daze. He didn’t even turn around and say, “Hi boys,” or anything. He just kept going. And so about twenty minutes later, here he comes with that rifle.

Victor Rodríguez: He came back, entered the cantina, and shot Joe Espinosa, in the heart.

Oralia Espinosa: He lived maybe thirty minutes after we got to the hospital. And my mother told me Caetano’s dead. It was just hard to believe. It was just incredible.

Narrator: In his law office in San Antonio, Gus García listened as Pete Hernández’s mother choked back sobs. García realized that there was more to this case than a small-town murder.

Bob Sánchez: Hernández was guilty as sin. No question, but they had been looking for a significant case which would bring about a ruling from the higher courts that segregation or discrimination against Mexican Americans would be illegal.

Narrator: The key issue for García was not whether Pete Hernández shot Joe Espinosa it was that like many Latino defendants before him, Hernández’s fate would be decided by an all-Anglo jury.

Dr Ramiro Casso: There were 70 or more counties in Texas who had never had a Hispanic on a jury, just because, they didn’t think that we were capable of doing anything worthwhile. How do you get around the law that you have to be judged by a … a jury of your peers?

Narrator: García was convinced that this was the case that he and his activist colleagues had been waiting for. Gus García was not one to think small.

Bob Sánchez: You could write a book about, Gus. Fine-looking fellow, movie star-looking type, well dressed guy, brilliant.

Narrator: At 36, Gus García was already a local legend. The son of ranchers who could trace their Texas roots back to the Spanish crown, García was a dashing figure whose legal victories and glamorous social life had made headlines.

Eleanor McCusker: He was tall and he was slender, he had coal black hair and those green penetrating eyes that ah in my view made him very handsome.

Bob Sánchez: Gus was a silver-tongued orator. He had a deep resonant voice. Anything he said he said with authority.

Narrator: García had been an outstanding student at the University of Texas, captain of the nationally-ranked debate team he had excelled at law school as well.

Still, even for Latinos with a stellar record like García’s, the doors to the state’s top law firms remained closed.

Ignacio García: There was only so far that you can go. There was a certain space provided them in which they could then fulfill some of their ambitions and dreams. So as good as they were, they saw the ceiling quite low outside of their community, but within their community I think they could fulfill much of their desires.

Narrator: Pete Hernández’s trial was set for October 8, 1951, in the Jackson County Courthouse. At the pre-trial hearing, García entered a plea of not guilty on behalf of his client. Then he raised an objection to the entire proceeding. He argued that Hernández was being denied a jury of his peers – that the practice of excluding Mexican American jurors, and the social hierarchy it reflected, were fundamentally unfair.

Ian Haney-López: If Mexican Americans had served on juries that judged whites, that would have up-ended Texas’s racial caste system. That would have said that Mexican Americans were the equal of whites, were capable of sitting in judgment on whites. And that I think is ultimately what the lawyers were fighting for.

Narrator: García soon realized it was not wise to wage legal war alone, in Edna, Texas, without some reinforcements.

Ian Haney-López: Texas had a phenomena called “sundown towns.” This name came from the idea that no minorities should be caught in town after the sun went down, at the penalty of violence.

Narrator: García called in John Herrera, an experienced Houston trial lawyer with a well-earned reputation for toughness.

Benny Martínez: Mr. Herrera was not afraid to speak out against anybody. He had big feet. He’d step on anybody. He wasn’t scared!

Narrator: Herrera brought along a young attorney, James DeAnda, to handle the statistical research.

Judge DeAnda: I did quite a bit of investigation on the case. And that county as it turned out there had never been a Hispanic in modern times ever served on either a grand jury, petit jury, or any other type of jury.

Narrator: García and his team pressed their case – armed with statistics proving the county’s history of systematic exclusion, and their lead lawyer’s sharp tongue.

Victor Rodríquez: They walked into the courthouse, and when they confronted the judge, the judge asked them if they needed an interpreter. And in his own articulate way, Gus García replied, “No, sir, if you can’t understand English or Spanish perhaps one of my colleagues can interpret for you.”

Henry Flores: When you bring a civil rights case, you’re challenging social convention and tradition and custom. And some people see it as a threat to, to, to a political structure, a social structure, a threat, to a way of life.

Eleanor McCusker: It wasn’t safe for them to stay there, because some of the people were very upset about the case, and what these lawyers were tryin’ to do. And, they thought it best not to stay there. They may not wake up there.

Martha Tevis: The men who were arguing the Hernandez case had to drive home to Houston every night from Edna, Texas. They didn’t dare stay in town.

Narrator: The first task the lawyers faced was to show a pattern of discrimination against Mexican Americans as a group.

To do that, they called Pauline Rosa, an Edna resident, to the stand. She testified that she had tried to enroll her U.S. born, English-speaking children in Edna’s all Anglo school only to be told, “They did not accept any Latin Americans.” Pressed by the prosecutor, she insisted, “They discriminated against me and my children.”

Lisa Ramos: For Pauline Rosa a Mexican American woman in Jackson County Texas to challenge the Anglo power structure was something pretty, pretty amazing. She saw that she could do something to effect change for her children.

Ignacio García: People have said, “She’s indicting the whole community,” but she was reflecting a view by Mexican Americans that while people might not individually say something or do something to them, collectively, they were happy with the system. I think all of them, both Anglo and Mexicans, understood very well what she was talking about in terms of “They all discriminate against me and my children.”

Narrator: During a pause in the proceedings, the Hernandez lawyers sought out a men’s room. They found one, on the courthouse grounds. But it turned out that there was a problem.

Michael Olivas: And the sign said men but a Mexican janitor whispered to them in Spanish that they couldn’t use it. And he told them in Spanish that there was another one “hazte pa’ca” out, out back. And they went downstairs and they find another men’s bathroom downstairs with a bathroom sign that says “Colored Men, Hombres Aqui” – “Men Here.”

Think of the irony of this. In the very courthouse where the state of Texas is arguing that Mexican Americans are white and, therefore, an all-white jury can convict a Mexican charged with murder, they can’t use the bathroom reserved for whites.

Ian Haney-López: They’re not lawyers who are operating above the fray, who are somehow independent of everything that’s going on they, too, are subject to this racial system. In some real sense the lawyers in Hernandez v. Texas were themselves the clients.

Narrator: The judge overruled the defense team’s objection to the all white jury. It took that jury less than four hours to reach its verdict.

Pete Hernández was convicted of murder and sentenced to life in prison.
His lawyers immediately appealed. For them, the hard work was just beginning.

Narrator: In the spring of 1952, as they mapped out their strategy, García and Herrera realized they needed help. They turned to García’s longtime friend and former law partner, Carlos Cadena.

Henry Flores: These two guys together were probably the most powerful intellectual legal team that you could ever field.

Narrator: They made a kind of legal odd couple: García, charismatic and outgoing and Cadena, scholarly and reserved.

Eleanor McCusker: Carlos was the quiet one, always doing the heavy research. Gus was the one always talking and making the changes, and I think that’s why they got along so well.

Narrator: After discussions with Latino civil rights activists, the Hernandez lawyers decided on a bold but risky legal strategy. Arguing for constitutional protection for Mexican Americans, they would emphasize their ambiguous and vulnerable place in America’s racial hierarchy. They would put their very identity on trial.

Ian Haney-López: Mexican Americans were fighting to be treated as if they were white. But the irony here is that the Texas Courts seized on their claim to be white not to treat them fairly but to continue to defend this practice of unfair mistreatment. The Texas courts responded by saying, “So you’re white. That’s fine. Look at the juries. There’s nobody but white persons on the jury. You have no claim of discrimination.” In turn, the Mexican American lawyers had to respond, “We’re white, but we’re a class apart. We’re a distinct class that though white, is being treated as if we’re not white.” And that’s the basis on which they went forward with their litigation in Hernandez v. Texas.

Narrator: The “class apart” theory was as controversial as it was innovative.

Lisa Ramos: I think many Mexican Americans were afraid, “What would happen if we weren’t considered white? How do we know we’re not going to be forced or pushed to identify with the black race, at a time when black people are fundamentally denied so many basic rights.” But there’s also the element of racism, of the belief among some Mexican Americans that blackness is inferior. So there’s an element of racism and there’s an element of fear of Jim Crow segregation.

Narrator: Carlos Cadena took the lead in drafting the Hernandez appeal. Writing a tightly argued legal brief, he elaborated on the novel theory of “a class apart.” He also punctured the state’s legal position – that Mexican Americans were white, and therefore outside the protection of the 14th Amendment – with a few well-placed rhetorical thrusts.“About the only time,” Cadena wrote, “that so-called Mexicans, many of them Texans for seven generations, are covered with the Caucasian cloak, is when it serves the ends of those who would shamelessly deny this large segment of the Texas population their fundamental rights.”

Texas’s high court was not persuaded. The appeal was denied. The next step for the Hernandez lawyers, and a very risky one, was to turn to the United States Supreme Court.

Michael Olivas: It was an unusual ambition to take a case beyond Texas and to take it to the US Supreme Court. Moreover, no Mexican Americans had ever tried a case in the US supreme courts. They had no reason to believe that they would win.

Ian Haney-López: The lawyers in Hernandez gambled when they decided to take this case to the Supreme Court. They knew, on the up side, that they could win national recognition for the equality of Mexican Americans, but they knew, on the down side, that if they lost, they would establish at a national level the proposition that Mexican Americans could be treated as second-class citizens. And not just that, they knew that this was probably their one shot in a generation.

Norma Cantú: An appeal to the Supreme Court of the United States is a costly matter. You have to pay a filing fee, you have to pay for the printing of the briefs, you have to pay to travel to Washington, D.C. to argue the case.

Eleanor McCusker: They didn’t even have money to get up there, much less to really fight the case. And all that time away from home and their practice all shot because they were dedicating so much time to the case.

Narrator: Activists issued a national appeal for funds. The Mexican American community was generally poor, but the Hernandez case struck a chord.

Ignacio García: The American GI Forum takes it to the people. Its founder and – and national president, Hector García, has a radio program. He gets on the radio and he starts pleading for donations. LULAC does it through its chapters across the Texas and the Midwest requesting money.

So what you find is people sending letters and saying, “this is the Wharton LULAC Council and we’re sending you $25.” There’s a group in Chicago that sends $25. And then you had these individuals who are … are donating money. There’s a gentleman who says, “I heard you on the radio and I’m sending you this money please let me hear my name as someone who stands up for Mexican American rights.”

Martha Tevis: At one time Carlos Cadena literally had tears in his eyes. He said, “They would come up to me and they would give you crumpled-up dollar bills and they’d give you coins. These were people who couldn’t afford it, but couldn’t afford not to.

Dr Ramiro Casso: We all dug deep into our pockets and through the dollar bill and—and—and fund-raiser and a dollar bill there, and we made it you know—we made it.

Narrator: The Hernandez team had another problem – one of their own.

According to the rules of the Supreme Court, the petition was due on January 20, 1953, and had to be professionally printed. The Hernandez petition arrived on January 21st, a day late, typewritten. Despite the Texas Attorney General’s repeated objections, the Supreme Court decided to accept the submission. But it was a close call – and a troubling indication that something was seriously wrong.

Ignacio García: Gus García had a … a problem, ah with alcohol. Quite young in his life, ah, most people perceived he was an alcoholic and … and some of the discussions among reformers is can Gus García handle this opportunity.

Narrator: The activists who had backed the lawyers’ efforts for so long, began to worry out loud. Finally, they had the case they wanted before the United States Supreme Court. But perhaps, after going all this distance, Gus García would not be up to the challenge.

Ignacio García: I think in some ways, Mexican Americans were … were also intimidated by the process and said, you know, we’ve got to be up to it. We’ve really gotta look good there. We’ve gotta, seize the opportunity, and is Gus ready to do that?

Narrator: The case of Hernandez v. Texas was scheduled for oral argument before the Supreme Court and its new Chief Justice, Earl Warren, on January 11, 1954.

Gus García arrived in Washington early to prepare.

Time enough, it turned out, to give his doubters more cause for concern.

García knew that lawyers for the NAACP, led by Thurgood Marshall, had recently appeared before the Court, arguing the landmark school desegregation case, Brown v. Board of Education.

Hoping to keep up with the better-funded civil rights group, he retained a publicist and a hotel suite his team could ill afford.

Ignacio García: Gus García was looking at the issue and he–and he wanted the kind of support that African Americans had gotten. And the other reformers were dealing with the realities. That is, “We can come up with maybe $3,000 and that barely covers what we have to do.”

Narrator: Soon García was joined by the rest of the legal team, including John Herrera and Carlos Cadena.

Gloria Cadena: Carlos got to Washington and Gus had taken a hotel room for him. He had a bartender and he had a table set up with drinks and everything. Carlos was pretty furious cause they were on a short budget and Gus thought nothing of spending the budget because it was partly his.

Martha Tevis: Cadena went out to the airport to meet a man who was bringing money from San Antonio and the man said “how’d you like the money that we sent?” And he said, “Well there isn’t any of it left.” The man gave him several hundred dollars more and they both agreed that they would not tell Gus about the money. Cadena said, “Gus García was a scoundrel, and he was a liar.”

Narrator: January 10th, the final night before the oral argument. The next morning, Gus García would argue the case of a lifetime, a case that would determine not only his own reputation, but the future of the community that depended on him.
Sometime that night, García managed to evade the watchful eyes of his nervous colleagues.

Mike Herrera: He went off on a toot, and everybody knew but nobody knew where he was. And, ah, Gus shows up sometime rather late in the morning and he is very, very drunk.

Lisa Ramos: They knew they were about to face the Supreme Court Justices in a few hours, and here’s this man putting the case at risk. He was one of the two main lawyers who was going to speak before Chief Justice Earl Warren and the other Justices.

Mike Herrera: They threw Gus in a cold shower clothes and all. Ordered room service, a big pot of black coffee and, and went on to sober him up and, and get him ready.

Narrator: On January 11, as the lawyers marched up to the Supreme Court, the wintry chill reminded them that Texas was very far away indeed.

The lawyers were about to face a Court that had never before been addressed by Mexican American attorneys, or been asked to consider the question of Mexican American civil rights.

Ignacio García: If you can imagine Carlos Cadena and Gus García getting the opportunity that no one else has ever had, to be able to paint a picture of a community and where it stood in time, and all of the–the practices, the laws, the–the circumstances that keep them where they were.

Norma Cantú: “Carlos Cadena sitting at the counsel table wearing a very dark serious suit, Gus García sitting next to him. The nine justices sitting on a long bench facing the two sets of parties. The Texas Attorney General sitting at their own table ready to defend the state’s decision that Mexican Americans were really Whites.

Ian Haney-López: The lawyers in Hernandez needed to argue that the 14th Amendment protected Mexican Americans to a court that had barely ever heard of Mexican Americans.

Carlos Cadena: I opened the argument and I said “Your petitioner is a … an American citizen of Mexican descent” and one of the judges asked me “What is that?” “What the-you stupid guy everybody knows what that is!” But anyway I was explaining and Justice Frankfurter interrupted and said “they call him greasers down there don’t they?”

Ignacio García: Gus García who seemed to be “out of it,” during most of the presentation by Carlos Cadena, was suddenly awoken by, several questions that were asked by the judges – can Mexican Americans speak English, are they citizens? And I think was the key for … for Gus García, because Gus García tended to personalize that and he saw within himself all the abilities and qualities of the Mexican American community.

Narrator: Fueled by indignation, García offered the justices a brief irony-laced history lesson. “My people,” he told them, “were in Texas a hundred years before Sam Houston, that wetback from Tennessee.” And he was just getting started.

Bob Sánchez: Gus’s delivery was so eloquent, it was so beautiful, so penetrating, so down to earth in high…spun…legal argument.

Mike Herrera: There are some lights there on the rostrum and when the red light comes on, you stop. And everybody knew that. When the red light came on, Gus stopped in mid-sentence. And then Justice Earl Warren leaned off the bench and said, “Continue, Mr. García”.

John J. Herrera Audio: Gus García was told to proceed. So he stole sixteen extra minutes. So when we walked out of the Supreme Court of the United States he met with one of the attachés and the attaché was an old black man he says ‘this is unprecedented’ he says they’ve never even given extra time here to Thurgood Marshall and he was here last week.

Narrator: After years of planning and all the legal work, it was finally over. The case that the activists and lawyers had focused on for so long was now out of their hands. The exhausted Hernandez legal team headed home to await the court’s decision.

Soon after their return, García and Herrera went on the radio to share their tale with the public that had supported them with their dollars and their prayers.

Gus García Audio:

Para mi fue una gran satisfacción participar en este caso y decirles las verdades a los señores magistrados de la suprema corte en Washington. Y acuérdate Johnny que ni a ti, ni a Carlos Cadena ni a un servidor, nos han faltado palabras jamás para defender nuestros derechos.

Slate (translation): It was very gratifying to be part of this case and speak the truth to the Supreme Court justices in Washington. And remember Johnny, neither you, nor Carlos Cadena, nor I have ever been at a loss for words to defend our rights.

Narrator: Finally, on May 3, 1954 the United States Supreme Court announced its ruling in the case of Hernandez v. Texas.

The decision of the Texas court was reversed. Pete Hernández would receive a new trial, before a true jury of his peers – a trial that would ultimately result in his reconviction for the killing of Joe Espinosa.

But far more important was the Court’s legal reasoning – a holding that Mexican Americans, as a group, were protected under the Constitution’s 14th Amendment, in keeping with the theory that they were indeed “a class apart.” It was a victory for the ordinary people who had endured discrimination without recourse for generations, and the activists who had fought on their behalf.

For Carlos Cadena, the meticulous legal theorist.

And for Gus García, who had disproved the doubters, and triumphed despite his inner demons. Hailed as heroes, the Hernandez lawyers were applauded by Mexican Americans across the Southwest.

Ignacio García: In every place they went and spoke, it was about, “Look at what Mexican Americans have done. Look at what – how we presented our case to the nation. Look at how we have finally made the people of the United States listen. Now they know we’re here.”

Ian Haney-López: The victory in Hernandez was huge for the Mexican American community. They now had the highest court in the land saying it’s unconstitutional. Indeed, symbolically it’s un-American to treat Mexicans as if they’re an inferior race.

Narrator: With the decision and the power of the United States’ Constitution behind them, Mexican Americans successfully challenged employment and housing discrimination they tore down barriers to their right to vote and run for office they ensured that their children would no longer be forced to attend segregated schools.

Carlos Guerra: This case is incredibly important because it guarantees that even being different that we are still protected under the laws of this great land. I think Mexican Americans in particular, Latinos in general but America as a whole owes a great debt to the people who pursued this case.

Narrator: For Gus García, the future would be shadowed by tragedy. Not long after his legal triumph, his personal life spun out of control. Alcoholism would be cruelly compounded by mental illness, taking García in and out of institutions for the next decade.

Eleanor McCusker: I didn’t see him those last few months when they said he was just beyond himself in San Antonio.

Dr Ramiro Casso: All the reports that I got back were that his mind was deteriorating that his behavior was changing. And he died on a bench. Isn’t that tragic, I mean somebody with such a brilliant mind, my God.

Narrator: Gus García died of liver failure in 1964, at age 48.

Less than a year later, Carlos Cadena would be named the first Mexican American justice of the Texas Court of Appeals, and would go on to become Chief Justice.

After the Hernandez case, Mexican Americans across the country would no longer be considered second-class citizens under the law. The struggle was hardly over, but the lives of millions of Americans had been changed forever.

Ian Haney-Lopez: Hernandez v. Texas belongs in the pantheon of great civil rights cases, indeed of great American cases. But even more important, it belongs in the pantheon of great moments in American history. This is a moment when a people long regarded as inferior, organize and demand equal treatment and succeed in that demand. This is an inspirational moment in American history, a moment in which equality is demanded and achieved.


The forgotten history of how Latinos earned the right to vote

The decision that changed everything about modern voting rights was barely made by a majority. The 5-4 Supreme Court decision, 2013’s Shelby County v. Holder, partially dismantled the Voting Rights Act, first passed in 1965 and born out of our country’s inability to equally provide access to the ballot box.

Up for argument that February day was the issue of preclearance, or the Section 5 requirement that 15 states (mostly Southern, because of their bigoted response to abolition) must submit changes to their electoral policies to the federal government for oversight. The oversight succeeded in tamping down myriad discriminatory practices by state and local officials, like voter ID laws and gerrymandering. But in his majority opinion , Chief Justice John Roberts declared that “the country has changed” and while we do still have voter discrimination, the Voting Rights Act had overstepped for our current era.

In the two years since, Texas , North Carolina and Wisconsin have passed some of the strictest voter ID laws in history (although they were all successfully challenged). Meanwhile, the nominee for a major political party began his campaign by calling Mexicans “rapists” and “drug dealers.” Minority voters have become paramount to the elections because of their growing numbers. As some states scramble to make it harder to vote, it’s more important than ever to preserve the right to vote for people of color.

Historically, most of the discussion about voting rights has been centered on African Americans. But in the Era of Trump™ and his supporters, who openly insult Hispanics and cheer a deportation force , it’s important to remember that Latinos fought hard for the right to vote, too—and that African Americans worked in tandem to get us those rights.

So many of these stories start in Texas. Since the days of a shifting Southern border in 1845 and the oil boom and bust of the 1980s , Latinos have been the most populous minority group in the Lone Star state. (Nowadays, Texas has the second-largest Hispanic population in the country, about 39% .) As a result, white anxiety about Latinos, particularly Mexican Americans, rocketed upwards at the same time black Americans were being disenfranchised after slavery.

In 1923, Texas codified all-white primaries within the Democratic Party, treating them as a private entity. This meant that non-whites weren’t allowed to participate in the party’s primary elections, which effectively decided the general elections’ outcomes because of the Democratic Party’s dominance. While the law outright banned African Americans from voting, Mexican Americans in south Texas weren’t exactly welcomed into the voting booth. They weren’t black, but they certainly weren’t white.

Ari Berman, author of Give Us the Ballot: The Modern Struggle for Voting Rights in America, told me that tactics like poll taxes were an almost universal hindrance to minority voters. “I think these things were mostly targeted at black voters, but they impacted other minorities,” Berman said. “Poll taxes prevented Latinos from participating. And English-only ballots acted like literacy tests.”

If you weren’t a native English speaker or didn’t have a strong command of the language, how were you supposed to pass an English-language literacy test or even fill out the forms to vote? You could kiss your access to the voting booth goodbye. Language barriers weren’t included in the first version of the Voting Rights Act so a generation of Latino voters, particularly in the southwest, was left behind.

The all-white primary system wasn’t completely overturned until a Supreme Court case in 1944, Smith v. Allright, the fourth Supreme Court case about Texas’s all-white primaries , deemed it unconstitutional. And yet, the Voting Rights Act wouldn’t come for another 20 years to protect disenfranchised citizens—and the extension that cemented that right for Latinos would take even longer.

The fight for voting rights for all minorities is tied up in the fight for access to all parts of civic life—a jury of one’s peers, access to an adequate defense, representatives who look like you—and Latinos are no different. Thomas A. Saenz, the president of the Mexican American Legal Defense and Educational Fund, said Texas was rife with examples of excluding Mexican Americans from basic civil liberties. Take Hernandez v. Texas in 1954, one of the first civil rights cases involving Mexican Americans to make it to the Supreme Court.

In Hernandez v. Texas, the lawyer for the defense sought to quash a murder indictment because an all-white jury had convicted Pete Hernandez, who was Mexican American. No Mexican American had been called for jury service in more than two decades they were technically classified as white by law, but not in practice. The state attempted to argue that this was mere coincidence, not a pattern of discrimination. But in the very court house the case was argued in, there were separate bathroom facilities for whites and African Americans. And under the sign for the black facilities, it read “HOMBRES AQUÍ”—“men here.”

The Warren court unanimously ruled in 1954 that the Fourteenth Amendment's equal protection clause, including access to a jury of one’s peers, went beyond simply white and black citizens to include other nationalities. In Texas, Saenz told me, it took time for civil rights reforms for black Americans to include Latinx. (A majority of litigation about Latinx voting rights were centered on Mexican-American citizens. The language used here isn't meant to substitute the experience of Mexican-Americans for all Latinos, but to serve as a reminder that a certain part of our population was used to secure the civil rights for the rest of us.)

By the early 1970s, Latinx people were allowed to serve on juries. If you could speak English and were above the age of 18, voting was easier to accomplish than ever before. There were fewer obstacles as a person of color in this country and the Civil Rights Division of the Department of Justice was monitoring elections closely for VRA violations. But despite this new normal, language was still a significant barrier and the Voting Rights Act was set to expire in August 1975.

As a part of the hearings to reauthorize and possibly amend the Voting Rights Act in February 1975, a man named Modesto Rodriguez testified before Congress. Rodriguez was a farmer in Pearsall, Texas who grew watermelon, maize, corn, and other crops on his ranch. In Berman’s book, one lawmaker described Rodriguez as an “everyman” to politicians, the man who talked to Congress about the country’s “forgotten minority.” In his testimony, Modesto recounted financial retribution, like how his loan for his farm was denied once he got into politics, and physical intimidation, like how he was beat outside of a bar when trying to recruit fellow Latinos to testify before Congress.

All of this kept Latinos fearful of even registering to vote. “There has been a great failure on the part of the state of Texas to protect the voting rights of the Chicano electorate,” Modesto said, so Chicanos were turning to Congress for help.

Despite the Act's success, the civil rights community was still worried it was a tenuous victory. Though the testimony of Modesto and other Latinx was effective in presenting the facts from the ground, activists and lawmakers were anxious about amending the law too much. There was no way of knowing how changes in the electoral system would be received by Southern lawmakers—or voters.

But not every civil rights leader felt that way. Since there weren’t any Latino elected officials, Berman told me, Latinos needed allies—“people like Barbara Jordan and [ civil rights icon ] John Lewis, who brought the clout of the civil rights movement to the table.” Jordan was a black congresswoman from Texas who helped people see the link between the black Americans’ voting rights struggles and Latinx.

When I talked to Jordan’s biographer, Mary Beth Rogers, she pointed out that Jordan’s exposure to Latinos in her native Texas were what compelled her to widen those protected by the Voting Rights Act. “She was in tune, before she went to Congress, to the needs of Mexican Americans in Texas,” Rogers said. “That made her open [to the bill] when her staff members brought her the possibility” of updating the VRA. Jordan, who would become known as “the black LBJ,” understood that the language barrier was Mexican Americans’ version of African Americans’ literacy tests.

Jordan believed voting was “the greatest civil right,” Rogers told me, “because she saw that the Civil Rights Act, the Voting Rights Act and those Supreme Court decisions for redistricting made her journey into politics possible.”

The 1975 extension was passed with strong majorities and signed into law that August. The result was wherever there was 5% of the voting population was language-minority, voting materials had to be offered in that language. That meant Chicanos in Texas, Arizona, and California would be covered as well as Puerto Ricans, Cubans, Asian Americans, Alaskans, and Hawaiians.

There are 27.3 million potential Hispanic voters eligible this year. But minority voter outreach is expensive, and the New York Times Magazine reported that borderline voters need more than a dozen “touches” or contacts from activists or campaign staffers before they’ll turn out to vote. And yet, a report by the Washington Post from late September found that neither the Democratic Senatorial Campaign Committee and the Democratic Congressional Campaign Committee employed Hispanic outreach coordinators.

Although Latinx voter registration is spiking —likely because of Donald Trump's candidacy—it’s estimated that only 13.1 million will vote in November of that potential 27.3 million. If Latinos can get to the voting booth, they’ll have the power to stop Donald Trump. And don’t worry: We can still keep the taco trucks on every corner.

Caitlin is the associate features editor at Fusion. Prior to Fusion, she worked on features and national affairs at Talking Points Memo and completed an investigative fellowship at The Seattle Times. Will listen to any and all Grey's Anatomy theories.


"By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation."

&mdashJustice Brennan

In 1975, the State of Texas enacted section 21.031 of the Texas Education Code permitting public school districts to deny admission or charge tuition to undocumented children. However, a 5-4 U.S. Supreme Court decision in Plyler v. Doe struck down this section and ruled all children&mdashregardless of their citizenship&mdashwere entitled to free public education under the Equal Protection clause of the 14th Amendment

In1977, Tyler Independent School District charged $1000 per year to each child enrolled within the district who did not provide documentation of American citizenship. The Texas legislature&rsquos section 21.031 justified this decision, stating that free public education was only accessible to children residing legally within the state&rsquos borders. Peter Roos and Vilma Martinez from the Mexican American Legal Defense and Educational Fund (MALDEF) brought a class action suit to the district court.

According to the State of Texas, undocumented children were not &ldquowithin the jurisdiction&rdquo of the state and thus they were disqualified from public education. William Wayne Justice, the federal district judge, declared Texas&rsquo rationale from section 21.031 unconstitutional. Tyler ISD appealed to the fifth circuit court of appeals, which reaffirmed the lower court&rsquos decision by finding a violation of rights and equal protection. The school district disagreed with the court's ruling and appealed to the U.S. Supreme Court.

On June 15, 1982, Justice Brennan wrote the majority decision, which ruled against Texas&rsquo policy of denying or charging admission to undocumented children, and noted that the Equal Protection under the 14th Amendment are provisions that are &ldquouniversal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, color, or nationality&rdquo. Additionally, the court held that states could not deprive children from an education, request citizenship documentation,or hold children liable for their parent&rsquos actions.


» Legal History

The &lsquo Gold star icon &rsquo icon indicates a Texas title

By Olivas, Michael A. Arte Público Press. 2014.

This collection of essays details the first case tried by Mexican-Americans before the U.S. Supreme Court.

Click to access digital title.: http://txsll.law.overdrive.com/ContentDetails.htm?ID=8928CA27-DCDB-4060-9CBF-BA632659C2D3

By Scarborough, Jane Lynn. c1972.

This dissertation is a biography of George W. Paschal, a Texas lawyer and prolific collector and organizer of Texas statutory law and case law during the Civil War era. Chapter 3 discusses Paschal's Digests in depth.

By Haley, James L. Texas Supreme Court Historical Society. 1st edition. 2017.

This second book in the Taming Texas series covers law and justice in Texas's frontier era (1680s-1880s) including the history of the court system.

By Haley, James L. Texas Supreme Court Historical Society. 2016.

The first volume in the Taming Texas book series, this title shows how the state’s court system fits into the larger picture of Texas history: its roots, heroes, growing pains, and milestones, from the days of early Spanish colonization to the present.

By Dobkins, Betty Eakle. University of Texas Press. 1959.

A history of how Spanish law influenced the development of Texas water law.

Click to access digital title.: http://overdrive.sll.texas.gov/ContentDetails.htm?ID=02335063-0DFA-47A6-91E2-D1D6E992F602

Award-winning author James L. Haley offers this lively narrative history of Texas's highest court and how it helped to shape the Lone Star State during its first 150 years.

Click to access digital title.: http://txsll.law.overdrive.com/ContentDetails.htm?ID=3B268F74-CD3F-4A93-A5B3-3286E6CD0282

By Bonfield, Lloyd. Thomson/West. c2006.

"This book, suitable as a primer for foreign LLMs — or as an introductory survey for American students of both procedural and substantive law — is a comprehensive, though concise, survey of the American legal system — its structure and its methodology." - publisher's description

Originally published to mark the 50th anniversary of Gideon v. Wainwright, this title explores the legacy of that landmark Supreme Court decision by sharing the stories of defendants around the county who have relied on public defenders for representation.

Click to access digital title.: http://txsll.law.overdrive.com/ContentDetails.htm?ID=40B4B350-2D39-438E-8B4D-CB9FDF048EBB

By Kozolchyk, Boris. West Academic Publishing. Second edition. 2019.

"This work offers a contextual comparative analysis of commercial contracts from their origin until the present time. It studies their positive and living law in countries and regions representative of major legal systems and business cultures: Classical Rome, Medieval Europe and the Middle East, Codification Europe (especially France and Germany), Post-Colonial Latin America, the Soviet Union, the Peoples’ Republic of China, England (eighteenth and nineteenth centuries), and Post-Colonial United States. It identifies contractual concepts, principles, rules, doctrines, methods of reasoning and commercial practices that have contributed most to mankind’s economic development. Finally, it explains how certain selfish and altruistic components of standard and fiduciary commercial and financial practices combine to cause the necessary trust and cooperation that makes possible both economic growth and legal institutional longevity." - publisher's description

By Glendon, Mary Ann. West Academic Publishing. Fourth edition. 2016.

"This nutshell offers a general introduction to comparative law that includes both an overview of the methods of comparative law as well as of the two most widespread legal traditions in the world: civil (or Romano-Germanic) law and common law. For both legal traditions, this expert discussion covers their history legal structures, including constitutional systems, courts, and judicial review the roles of central legal actors, including lawyers, judges, and scholars an overview of civil and criminal procedure the principal sources of law and divisions of substantive law and the judicial process. Throughout, the discussion also includes references to the place and the importance of supranational law and institutions and their impact on the civil law and common law traditions in Europe." - publisher's description

By Ragsdale, Bruce A. Federal Judicial Center, Federal Judicial History Office. 2013.

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.”

By Kempin, Frederick G. West Pub. Co. Third edition. 1990, c2007.

"Presents the development of the basic institutions of the Anglo-American common-law system. Explores the sources of law from cases, legislation, and codification, to doctrinal writings. The text also discusses the development of legal concepts such as property in land, contracts, liability for injury, negotiability of commercial paper, and the business corporation." - publisher's description

By Campbell, Randolph B. 1st ed. 2010.

A remarkable collection of original decrees, court cases, and other documents charting the legal history of African Americans in Texas, from Mexican rule through Confederate law.

Click to access digital title.: http://txsll.law.overdrive.com/ContentDetails.htm?ID=C2396B96-3F87-4FD5-8ACC-041EE65E646F

By Rotunda, Ronald D. West. Fifth edition. 2018.

"Many law professors aim to probe deep ethical issues in class. But they also need to cover the material that the Multistate Professional Responsibility Examination requires. The Rotunda Nutshell fulfils that need as it digests the Model Rules in an engaging, analytical, and often critical way. In a surprisingly pithy manner, this book places the Rules in an historic context that lets the student understand problems with prior versions of the Rules and the Model Code. The Nutshell also analyzes the American Law Institute's Restatement of the Law Governing Lawyers, Third. This approach frees up precious class time for important normative issues. And, this Nutshell helps your students come up with better answers to your Socratic questions than you anticipated. This book has proved so popular as an explanation of the basic principles of legal ethics that it has been translated into Japanese." -publisher's description

By Ferguson, Andrew G. New York University Press. 2013.

Combining American history, constitutional law, and personal experience, this book engages citizens in the deeper meaning of jury service.

Click to access digital title.: http://overdrive.sll.texas.gov/ContentDetails.htm?ID=01133296-91C4-4674-B634-F8BE22C1855F

In this surprising and highly unconventional work, Harvard law professor Mark Tushnet poses a seemingly simple question that yields a thoroughly unexpected answer. The Constitution matters, he argues, not because it structures our government but because it structures our politics. He maintains that politicians and political parties—not Supreme Court decisions—are the true engines of constitutional change in our system. This message will empower all citizens who use direct political action to define and protect our rights and liberties as Americans.Unlike legal scholars who consider the Constitution only as a blueprint for American democracy, Tushnet focuses on the ways it serves as a framework for political debate. Each branch of government draws substantive inspiration and procedural structure from the Constitution but can effect change only when there is the political will to carry it out. Tushnet's political understanding of the Constitution therefore does not.

Click to access digital title.: http://txsll.law.overdrive.com/ContentDetails.htm?ID=6F5B4C32-55C7-45AE-BE90-6B79B52F8B69


Smith vs. Allwright: A Turning Point for Texas Voting Rights

Passed in 1905, the Terrell Law created a statewide direct-primary system for all state, district, and county elective offices in Texas. The provisions of Terrell legalized and encouraged the creation of “whites-only” primary election voting requirements that resulted in minority voter discrimination in Texas for the next four decades. Image from Open Library.

The Moment: On April 3, 1944, the U.S. Supreme Court overturned the Texas law that authorized political parties to set their own rules for voting requirements, including the practice of holding “whites-only” primary elections.

Why It Matters: The landmark ruling of Smith v. Allwright had far-reaching implications in Texas and other states that barred non-whites from voting in primary elections.

By 1944, voter discrimination in Texas should have long been a thing of the past, according to the U.S. Constitution.

The 14th Amendment, which granted citizenship, civil and legal rights to African Americans and former slaves, had been ratified in 1868—followed two years later by the ratification of the 15th Amendment, which prohibited denial of voting rights on the basis of race or color. In 1920, Congress ratified the 19th Amendment, which guaranteed voting rights for women.

But in mid-century Texas, voting equality existed only on paper. Despite the freedoms promised by these amendments, Texas and other states employed a number of tactics to disenfranchise minority and poor voters, including legalized oppression in the form of discriminatory election laws as well as unofficially-sanctioned voter intimidation practices.

One of the most effective means of discrimination was the “white primary”, which barred non-whites from joining the Democratic party (then the only major political party operating in Texas) or voting in Democratic primary elections. Although the state’s white primary law was struck down by two Supreme Court rulings (Nixon v. Herndon, 1927, and Nixon v. Condon, 1932), Texas engineered a workaround in the form of a law that allowed Texas political parties to set their own rules, including whites-only primaries. This law was upheld in a 1935 Supreme Court decision, Grovey v. Townsend.

Ramifications for Texas women…

In 1977, Texas civil rights leader Christia Adair recalled her first voting experience during an oral history interview with the Schlesinger Library at Radcliffe College.

The year was 1918, and Texas women had just won the right to vote in the state’s Democratic primary election. Christia, then in her early twenties, had worked to secure the law’s passage, as had many of her civic-minded friends. They readied themselves for the historic 1918 primary election with great anticipation.

“The white women were going to vote,” she said. “And we dressed up and went to vote, and when we got down there, well, we couldn’t vote. They gave us all different kinds of excuses why. So finally one woman, a Mrs. Simmons, said, ‘Are you saying that we can’t vote because we’re Negroes?’ And he said, ‘Yes, Negroes don’t vote in primary in Texas.’ So that just hurt our hearts real bad.” (Read more at Houston Public Media.)

Christia’s experience was mirrored at polling places in other locations in Texas, as minority women attempted to exercise voting rights that year and in many years subsequent to the ratification of the 19th Amendment. The incident proved an inspirational catalyst in the life of the young suffragist, who would later become one of the most noteworthy civil rights activists in Texas.

Smith v. Allwright…

In fact, Christia was serving as the executive secretary for the Houston branch of the NAACP when the chapter decided to mount a fourth challenge to the Texas white primary system, this time in the name of Dr. Lonnie E. Smith, a prominent Houston dentist who sued election official S. S. Allwright after Smith was denied a ballot in the 1940 Harris County primary.

Counsel for the NAACP, Thurgood Marshall (later the Court’s first African-American justice), argued that the Texas primary system violated the 14th and 15th Amendments, since the law allowed whites to dominate the politics of the (then) one-party South.

Marshall prevailed, and the Court struck down the Texas law in an 8-1 vote. In the opinion penned by Justice Stanley F. Reed, he noted: “The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any state because of race. This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied.”

In the wake of the Court’s ruling, African-American voter registration vastly improved in Texas and throughout the South, swelling to more than 700,000 registered voters in 1948 and to one million by 1952. In Texas, the number of African Americans registered to vote increased from 30,000 in 1940 to 100,000 in 1947.

From the NAACP Legal Defense and Educational Fund website: “The implications of Smith had far-reaching effects on race relations in the South. It was the watershed in the struggle for Black rights, and it signaled the beginning of the Second Reconstruction and the modern civil rights movement. The political and social advances of Blacks simply could not have occurred without the changes that came in the wake of the overthrow of the Democratic white primary.”

Additional Learning:

“The Battle for the Black Ballot” by Charles L. Zelden [University Press of Kansas]


Supreme Court rules in Hernandez v. Texas, broadening civil rights laws - HISTORY

The Supreme Court unanimously ruled against the state of Texas and in favor of Heman Sweatt and declared that “the equal protection clause of the Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law School.” The Court found that in terms of volumes in the library, reputation of faculty, offering of courses, and available scholarships, the University of Texas Law School was far superior. Even in terms of intangibles like the ability to interact with his colleagues in the legal profession and the reputation of the University, the new law school for African-Americans was lacking. The Court thus held that Texas had not met the “equal” part of the “separate but equal” requirement.

Brown v. Board of Education (1954)

The Supreme Court unanimously ruled in favor of the African-American parents and their children. In doing so, the Court overruled the Court’s 1896 decision in Plessy v Ferguson and its “separate but equal” rule. Speaking through Chief Justice Earl Warren, the Court declared: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

On the same day the Court handed down its decision in Brown, the Court also ended racial segregation in the public schools of the District of Columbia in Bolling v Sharpe.

In 1955, the Supreme Court heard reargument in Brown v Board of Education II. The Court was again unanimous, and this time, directed the public schools involved to admit “with all deliberate speed” students on a racially nondiscriminatory basis.

Hernandez v. Texas (1954)

Chief Justice Earl Warren delivered the opinion for a unanimous Supreme Court which agreed with the arguments made by Hernandez’ attorneys and thus overturned his conviction. Warren wrote: “In numerous decisions, this Court has held that it is a denial of the equal protection of the laws of the Fourteenth Amendment to try a defendant of a particular race or color under an indictment issued by a grand jury, or before a petit jury, from which all persons of his race or color have, solely because of that race or color, been excluded by the state, whether acting through its legislature, its courts, or its executive or administrative officers. … Petitioner’s only claim is the right to be indicted and tried by juries from which all members of his class are not systematically excluded – juries selected from among all qualified persons regardless of national origin or descent. To this much, he is entitled by the Constitution.”