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excerpted from: Ariela J. Gross, “The Caucasian Cloak”: Mexican Americans and the Politics of Whiteness in the Twentieth-century Southwest, 95 Georgetown Law Journal 337 (January, 2007) (246 Footnotes) (Full Document)


Ariela J GrossIn 1954, two weeks before the U.S. Supreme Court handed down its famous decision in Brown v. Board of Education, it decided the case of Hernandez v. Texas, striking down Pete Hernandez's murder conviction because Mexican Americans had been systematically excluded from the Texas jury that tried him. The Court held that Mexican Americans, whether or not they were legally white, had been treated as a “separate class in Jackson County, distinct from ‘whites.”’ Decades later, in the 1991 case of Hernandez v. New York, the Supreme Court approved a prosecutor's use of peremptory challenges to strike Latinos from the jury, based on the “race-neutral” explanation that Spanish speakers would not accept the translator's version of the trial testimony. By one view, the story of these two Hernandez cases makes perfect sense: the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution prohibits discrimination on the basis of race or national origin but allows discrimination on other rational bases, such as language or culture.

The history of Mexican Americans' exclusion from juries, however--and the history of Mexican Americans and Jim Crow in the Southwest more broadly-- demonstrates that state officials have been describing their discriminatory practices in terms of language and culture for most of the twentieth century, even when they were engaging in fairly explicit racial discrimination. Thus, Cecil Walston, the county sheriff quoted above, could, in the same breath, both explain his belief that Mexican Americans were unintelligent and also assert that they were excluded from jury service on the basis of their customs, skills, and language ability rather than their race.

A growing body of commentators defends cultural discrimination and distinguishes it from discrimination on the basis of race. Legal scholar Richard Ford has entered this debate from a left legal perspective, arguing that the law should disaggregate race from culture, allowing employers to draw distinctions based on a broad array of cultural attributes, such as whether a person is Spanish speaking or has a corn-rowed hair style, even if they correlate closely to racial identity. He suggests that applying civil rights protections to “cultural differences” will feed identity politics, “difference discourse,” and “rights-to-difference” in a way that reifies the cultures of certain “canonical identity categories” and discourages cosmopolitanism. Ford is particularly concerned that applying antidiscrimination law to cultural discrimination may undesirably coerce people into acting out their identities in stereotypic ways, or send a state-sanctioned message that race means that people will conform to particular stereotypes. While aspects of this cosmopolitan project offer an important corrective to identity politics that assume a “different voice” for racial groups (as do some, but not all, “diversity”-based arguments for affirmative action), extending its reach to antidiscrimination law is a mistake. I bring up Ford not to engage every aspect of his compelling argument, but to offer an historical perspective that should make us skeptical about the race neutrality of cultural and language discrimination.

In the twentieth-century Southwest, employers, schools, social institutions, and government actors tied race to culture. As the appellant in Hernandez v. Texas argued, these private and state actors used presumed language ability as an excuse for segregation and threw a “Caucasian cloak” over discrimination, arguing that Mexican Americans were white and therefore were represented on juries so long as whites were represented. We should be as concerned about prosecutors' and employers' abilities to coerce individuals to perform their identities in particular ways--to conform to white or Anglo standards--as we are about courts' ability to do so.

Mexican Americans occupy a unique position in the history of race in the United States, shaped heavily by formal, positive law. When Texas and California became part of the United States as a result of the Mexican-American War, thousands of people already living there, who had been Mexican, became U.S. citizens by the terms of the Treaty of Guadalupe Hidalgo. This Treaty guaranteed to them U.S. citizenship as well as rights to property, unless they declared their intent to remain Mexican citizens within the year. Nevertheless, while a small elite of Mexican-American landholders who could prove that they were “Spanish” maintained white status, the majority of “Mexicans” were viewed and treated by Anglos as a separate race. Most “Mexicans” worked first on the railroads and then in agriculture. The mass of agricultural workers, like African Americans in the Southeast, were sharecroppers for white landlords, and they were excluded from schools, political institutions, and public accommodations. As Mexican immigrants flooded into the United States in the early twentieth century, they swelled the ranks of poor agricultural laborers isolated in segregated labor markets. Unlike European immigrants to Northern cities who were able to move up out of urban ghettoes through access to education and political patronage, Mexican Americans, like African Americans, faced a more thoroughgoing exclusion from full social and political citizenship.

However, despite the institutional similarities between the forms of discrimination experienced by Mexican Americans and African Americans under Jim Crow, the two groups' legal statuses were significantly different. State segregation statutes did not specifically target Mexican Americans; much of the discrimination they faced was de facto. Yet they were also in a different position from Asian immigrants to the United States in the early twentieth century, whose right to naturalize as formal citizens depended on the 1790 Immigration and Naturalization Act reserving citizenship for “free white person [s].” Because the Treaty of Guadalupe Hidalgo had guaranteed citizenship to Mexicans in Texas in 1848, federal courts interpreted the treaty to require all future Mexican immigrants to be eligible for naturalization. Thus, unlike the Japanese and South Asian Indians who argued before federal courts that they should be citizens because they were white, Mexican Americans were held by federal and state courts to be white because they were citizens--“white by treaty.”

This unique legal status meant that the far reaching exclusion of Mexican Americans from full social and political citizenship had to be justified on cultural, rather than racial grounds. State officials in Texas and California-- county attorneys, sheriffs, school board presidents--who clearly viewed Mexican Americans as an inferior race and treated them that way, learned over the course of the mid-twentieth century to explain their exclusion of Mexican Americans on the basis of language and culture rather than race.

In the decades before Hernandez v. Texas and Brown v. Board of Education, Mexican-American as well as African-American civil rights litigators had been attempting to use the Fourteenth Amendment guarantee of equal protection to gain access to full citizenship--and achieving only limited gains. Yet despite Mexican Americans' repeated defeats in the courts, the existence of that formal constitutional prohibition on overt racial discrimination by the state meant that the parties in trials were much more self-conscious and circumspect about what they said regarding race and status. State officials--like Cecil Walston, the Menard County Sheriff--were often extraordinarily un-self-conscious about admitting their beliefs that Mexican Americans were an inferior race, or at the very least, an inferior group of people. But they made certain to couch their bias in cultural terms.

As a result, these twentieth-century trials read quite differently than the nineteenth-century trials “litigating whiteness.” Parties on both sides used arguments about racial identity strategically and instrumentally, and we cannot take their legal strategies as a simple reflection of their actual thoughts and feelings about racial or national identity. These cases provide a different kind of window onto the culture than do the nineteenth-century trials, revealing not the anxieties of about how race should be known, but rather the growth of “cultural racism,” the veiling of racial thinking in cultural terms.

On the other hand, these twentieth-century Americans were struggling just as much as their nineteenth-century counterparts to determine how race would shape citizenship. It may be tempting to imagine that this equation between race and culture--so familiar in our own time to the readers of Dinesh D'Souza and Thomas Sowell--was readily available to the actors in these cases, and that white officials could simply invoke it freely to deny access to a group they perceived as nonwhite. On the contrary, this notion of cultural racism and the ways it might be used to segregate and disenfranchise a group of people were actually being worked out via these very trials and others like them elsewhere in the United States (as well as in the writings of academics, the debates of legislators, and so on). Just as it had taken work to create the antebellum binary system of black and white--not at all obvious in a society that was in fact multiracial and diverse; just as it had taken work to create the Jim Crow system of absolute racial segregation--not at all obvious in a society that was in fact created of a wide variety of interracial relationships; so did it take work to establish this contemporary view of race, in which racial inequality is justified not on the grounds of biology but rather on those of culture. While the trials I explore in this Article may not lay bare the psychology of the participants, they do reveal state officials working out their strategies of cultural racism, even as Mexican-American civil rights litigators adjusted their own strategies in response.

Particularly hard to answer is the question of how Mexican Americans viewed themselves. Only perhaps in the miscegenation cases do we see relatively untutored witnesses describing the racial identity of neighbors and struggling to explain what they mean by “Mexican.” In civil rights cases, as well as in letters, petitions, and other forms of advocacy, Mexican Americans used a spectrum of languages to identify their racial and national identity, so that it is difficult to know which statements they “really” meant and which ones were attempts to score points with white lawmakers, judges, or juries. It is also quite possible that individuals who articulated more than one version of self-identification might have themselves moved among different and inconsistent notions of their own identity, depending on the context. It need not be the case that these divergences were all rational and strategically planned.

Groundbreaking new work in the last several years, in particular by historian Neil Foley and legal scholar Ian Haney López, has focused scholarly attention on the question of Mexican Americans' fraught relation to white identity. Often this new scholarship has indicted civil rights leaders for their “Faustian pact with whiteness.” According to this narrative, mid-twentieth-century Mexican-American organizations and their lawyers claimed whiteness as a political and legal strategy--culminating in Hernandez v. Texas--until they finally abandoned it in the 1970 case of Cisneros v. Corpus Christi Independent School District. Some scholars portray whiteness claims as primarily strategic, while others see them as a deeper impulse towards assimilation and rejection of other people of color. In either case, the critics have to some extent adopted the perspective of the 1970s Chicano movement, taking the previous generation to task for its lack of racial pride and refusal to join coalitions with African Americans.

This Article seeks to shift the perspective away from apportioning blame to Mexican-American civil rights litigators and political advocates for their strategic choices, and away from the unanswerable question of whether Mexican Americans were or are “really” white. Instead, it focuses on the way state actors used Mexican-American whiteness to create and protect Jim Crow practices. As a strategy, whiteness was used against Mexican Americans far more often than on their behalf.

It would certainly be a mistake, however, to assume that all Mexican Americans identified as white, or even that whiteness was the chief strategy they employed in seeking rights. From the early twentieth century onward, many ordinary Mexican Americans--as well as litigators in their private correspondence--exhibited a more complex understanding of racial identity as produced by racist practice: because we are treated as a race, we are a race.

The notion of mestizaje, or racial mixture, also created a sense of the fluidity among groups and reinforced the importance of culture in defining identity: Mexican Americans often saw themselves and their culture as stronger because they were a mixed-race, or mestizo, people. Ironically, at the very moment that some Mexican-American advocates on the U.S. side of the border were claiming whiteness strategically, the newly independent government of Mexico was propagating the national mythos of la raza--the Mexican race uniquely strengthened by its combination of Spanish and Indian. Miscegenation cases during the first decades of the twentieth century reveal the clash between legal narratives of Mexican whiteness, popular narratives of Mexican racial ambiguity, and evidence of Mexican-black social fluidity.

Beginning in the 1930s, Mexican-American activists began to assert whiteness to government agencies, but often referred to the “Mexican race” and to their whiteness in the same breath; people who would never identify as “Mexican” in English continued to call themselves “mexicano” in Spanish. Texas Mexican plaintiffs brought racial discrimination lawsuits throughout the 1930s and 1940s at the same time they sought to be redefined as “white” on the U.S. Census and all state classification forms. While some Mexican-American organizations sought to distance themselves from African Americans and from Mexican nationals, others cooperated with African-American activists. During the 1950s and 1960s, civil rights litigators sought to make use of the limited gains they had achieved with a definition of Mexican whiteness before abandoning it for “minority” status. In short, even strategic uses of whiteness were self-conscious and contested among civil rights lawyers and activists. And even in the cases in which Mexican-American advocates most strongly pushed a strategy of whiteness, they also argued, even more strongly, that whether or not Mexican Americans were “really” white, they were treated as a separate race, and therefore in practice, they were a separate race.

By looking at manuscript trial records as well as the public writings and private correspondence of litigators and political advocates, it is possible to gain a deeper understanding of the intersection between law and culture at the ground level. I have chosen to concentrate primarily on the two states with the largest Mexican-American populations, Texas and California, which were also the battlegrounds for the major Mexican-American civil rights struggles and the sites of most of the litigation regarding Mexican-American whiteness in the twentieth century. These states, while by no means monolithic, were dominated by large scale commercial agriculture, which, as Mae Ngai has shown, spurred the “formation of the migratory agricultural workforce [that] was perhaps the central element in the broader process of modern Mexican racial formation in the United States.”

This Article will begin by exploring Mexican-American whiteness before 1930.

Part I will discuss the 1897 naturalization case, In re Rodriguez, that established Mexican Americans as “white by treaty.” Additionally, Part I will examine miscegenation cases from the early decades of the twentieth century when a massive influx of Mexican immigration and the expansion of Southwestern agriculture transformed race relations in Texas and California. 44

Part II will describe Jim Crow practices in the two states and the efforts of Mexican-American organizations to combat those practices--sometimes through whiteness claims and sometimes through claims of race discrimination.

Part III will discuss two forms of litigation in detail--school desegregation lawsuits and jury discrimination cases--during the 1930s and 1940s, showing the way in which whiteness was used against Mexican Americans in court.

Part IV will examine the aftermath of Hernandez v. Texas in conjunction with the rise of the Chicano Movement and the idea of “la raza cósmica” in the 1960s.
. . .

If, in fact, Mexicans' legal whiteness was used instrumentally by both advocates and judges (for different ends), did the legal regime of whiteness have any larger cultural significance? It certainly had lasting effects on the ability of Mexican Americans and African Americans to work together to combat Anglo racism, and it did little to undermine the equation of whiteness with moral and civic superiority. But the real tragedy of Hernandez and its aftermath has been the consistent refusal of state courts and the Supreme Court to acknowledge its central insight that race is produced by practices of subordination and that racial discrimination can be disguised as discrimination on the basis of culture or language.

The history of the twentieth-century Southwest shows why we cannot prohibit racial discrimination while allowing cultural discrimination. Because racial subordination has historically been based on a blending of racial science with racial performance, racism in the United States has conflated race and culture. Because racism has expressed itself in cultural terms, race and culture cannot be disaggregated without ignoring the way cultural discrimination reinforces racial hierarchy. If employers banned the Spanish language out of concern for ease of communication, it might make sense to distinguish between racial and cultural discrimination as Richard Ford prescribes. But “English only” laws, language tracking in schools, and discrimination against Spanish speakers have been extremely effective mechanisms of racial discrimination against Mexican Americans in the Southwest.

This history should matter to us today not only as a matter of theoretical debate over the relationship of race to culture. In cases like Hernandez v. New York and its progeny, contemporary courts have concluded that discrimination against Spanish speakers does not violate laws against racial discrimination. Although the Supreme Court in Hernandez v. New York did not reach the question of whether “language ability without more” would have sufficed as a “race-neutral” basis for peremptory strikes, later courts have extended Hernandez to the situation in which a prosecutor strikes jurors solely because they speak Spanish, without questioning them at all about their ability to follow or willingness to accept the official court translation. In Pemberthy v. Beyer, a New Jersey district court held that language ability was a proxy for race in the prosecutor's use of peremptory strikes against Latinos; the Third Circuit, in an opinion by then-Judge Samuel Alito, overturned the decision, finding that the prosecutor could have been concerned about translation issues in striking Spanish speakers from the jury. Despite an important line of precedent from the 1970s and 1980s holding that “race” should be applied broadly, that Latinos are a cognizable group for equal protection purposes, and that language ability can be a proxy for race, courts are increasingly finding discrimination against Spanish speakers to be permissible, whether in the context of jury exclusion, tracking in school, or English-only policies in the workplace. All of these discriminatory practices have their origins in the Jim Crow regime of the twentieth-century Southwest.

What stands out most about the depressing series of pronouncements from Texas courts justifying the second-class treatment of Mexican-American school-children and criminal defendants based on a litany of unsubstantiated stereotypes is the continuing respectability of cultural racism. For as long as we equate race with biology, and racism with the crudest forms of racial pseudoscience, as American courts have done, discrimination on the basis of cultural and linguistic difference will appear neutral and respectable and racial hierarchy will continue to flourish.

Professor of Law and History, University of Southern California Law School.\