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Excerpted from: Ian F. Haney Lopez, Protest, Repression, and Race: Legal Violence and the Chicano Movement, 150 University of Pennsylvania Law Review 205 (November, 2001) (127 Footnotes) (Full Document)

IanFHaneyLopezUntil the late 1960s, the Mexican community in the United States thought of itself as racially White. That is not how Anglos thought of Mexicans, of course. Largely beginning with the nineteenth-century period of intense Anglo-Mexican conflict in the Southwest, Anglo society perceived Mexicans as racially separate and inferior. By the 1920s, the Mexican community responded to this negative racialization by insisting that they were White. Leaders of the community claimed that Mexicans were Caucasian and thus White biologically, deserving the same social status and civic position as the White group. This belief in a White identity predominated among those who came to call themselves Mexican Americans. To some extent, members of this political generation successfully demanded from Anglo society recognition of their claims to a White identity. To take one example, although the U.S. Census Bureau enumerated a “Mexican race” in 1930, the Bureau bowed to political pressure from the Mexican community thereafter and in 1950 and 1960 counted that group as “White Persons of Spanish Surname.” Despite these gains, in the late 1960s a large segment of the Mexican community reversed its racial self-conception, proclaiming a non-White identity. One of the hallmarks of the Chicano movement of that period was the assertion, still widely subscribed to today, that Mexicans form a separate race from Whites. 

How did this transformation occur? Why did an emphasis on non-Whiteness arise in the late 1960s, when the community had fervently claimed a White identity during the relatively more racist 1940s and 1950s, and had even made some progress in garnering official recognition of Mexican Whiteness? Was the claim of non-Whiteness a strategic choice, or did it reflect genuine conviction? 

This Article explores these questions in the context of a particular criminal case that arose in East Los Angeles in 1968. In one week in late March 1968, over 10,000 students walked out of high schools serving the overwhelmingly Mexican East Los Angeles area. Some scholars mark this protest against terrible school conditions as the inception of the Chicano movement. The Los Angeles grand jury indicted thirteen activists on charges ranging from disturbing the peace to conspiracy for their roles in supporting the student protests. Many of the defendants were initially arrested and held without bail; they each faced possible sentences of forty-five years in jail. In what would be conducted as a political showpiece, the defense, led by a volatile attorney, Oscar Acosta, argued that the indictments were unconstitutional because the local judges had discriminated against Mexicans in selecting members of the indicting grand jury. The defendants in what came to be known as East LA Thirteen publicly denounced the trial as an exercise of judicial bigotry. 

This case illustrates the shifting nature of Mexican racial identity during this period. It also highlights the role of law, and legal violence in particular, in the evolving racialization of Mexicans as non-White. I contend in this Article that legal violence, encompassing both judicial mistreatment and police brutality, substantially contributed to the emergence of a Chicano movement that stressed a non-White Mexican identity. 

The discussion in Part II summarizes recent developments in the study of social movements.

Part III considers the role of the African-American struggle for equality in laying the groundwork for the Chicano movement.

The largest section, Part IV, considers the particular contribution of legal violence to Chicano racial formation. Before turning to the principal text, though, a comment on nomenclature is required. 

The term “Mexican” refers here generally to all permanent immigrants to the United States from Mexico and their descendants, as well as to persons descended from Mexican inhabitants of the southwestern region acquired in the mid-nineteenth century by the United States under the Treaty of Guadalupe Hidalgo. This term makes no distinction on the basis of citizenship. I employ this label in order to reserve for more particular usage the terms “Mexican American” and “Chicano.” “Mexican American” became a popular designation among members of the Mexican community beginning in the late 1920s. Although to some extent it has lost any racial connotation, historically “Mexican American” arose as a term of self-description that carried with it an assimilationist ideology and an explicit claim to White racial identity. In this Article I use “Mexican American” when referring to members of the Mexican community whose social, political, and racial commitments include a subscription to the idea that Mexicans are White. “Chicano” became a common identification during the late 1960s, especially among those who rejected the prior assimilationist orientation of the Mexican community. The term “Chicano” incorporated an assertion that Mexicans constituted a non-White race. As with “Mexican American,” I use “Chicano” as a label for those who subscribe to specific racial claims, here non-Whiteness. Correspondingly, I seek to use “Mexican” in a manner that does not imply a specific conception of racial identity. “Mexican” serves as a default label bearing no specific racial connotations. 

My index of different terms to the various racial valences associated with Mexican identity is uncommon. Few scholars make a similarly sharp distinction in usage, and among those who refer to themselves as Chicano or Mexican-American, significant variation exists regarding the nature of any implicit racial claims. Indeed, currently Chicano and Mexican-American often serve as synonyms. Nevertheless, using these labels in a manner that emphasizes their original racial connotations adds clarity to my overall discussion, and sharpens the argument that racial identity is a social, and sometimes legal, construction.

[. . .] 

The case study presented here tells a fairly particular story about the role played by legal violence in contributing to the emergence of a non-White identity among Mexicans in Los Angeles. It also tells us something more generally about the relationship between race and law. 

The dramatic change in Mexican racial identity in 1968 confirms that race is a social construction and helps us to grasp what is further entailed thereby. In particular, this case study suggests that race operates as social knowledge along three interrelated levels: the conscious, the common sense, and the material. On the first level, race is a product of conscious thought and subject to purposeful manipulation. Strategizing by the Chicano activists around the issue of identity as a means of collective mobilization exemplifies the conscious construction of racial ideas. Race also reflects common sense--background ideas that channel conscious thought but are not explicitly recognized or purposefully relied upon. The strong identification of Chicano activists with Blackness, as well as their consistent reliance on the connections among protest, repression, and race, demonstrate how race functions as common sense. The operation of racial common sense led the activists to believe genuinely that they were Brown. They did not “choose” that identity, in the sense of recognizing themselves to be electing a race, or to be proclaiming a racial identity that they knew to be fabricated. Even as they struggled over their racial identity, they believed themselves to be wrestling with a fact, a truth that existed outside of themselves and beyond social control. The Chicanos accepted as part of the common sense of race that race was natural and physical, rather than social and cultural. 

Racial knowledge involves more than conscious and common sense thought, though. It also reflects the material world. This actual world includes the variations in human physiognomy that racial ideology accentuates. More importantly, it encompasses embedded social practices that reflect racial thinking, and it includes the social and economic dislocations produced by long reliance on racial ideas. We must include in that real world the legal violence perpetrated by the courts against Mexicans. The East LA Thirteen prosecution only hints at the extent and reach of the violent repression practiced by the legal system against those constructed as racial minorities. Indeed, East Los Angeles itself--a culturally vibrant community, but also a segregated and impoverished enclave--stands as testimony to the material aspects of racial knowledge. The actual world in which we live, and the common practices by which we shape that world, form a core aspect in the social construction of race. This material component is inseparable from either conscious or common sense understandings of race--it is the world that we “know” and all too often render “natural.” 

As historical sociology, this Article explores the context in which Mexicans substantially changed their racial self-conception. Yet, this study offers broadly applicable lessons. I have argued earlier that law constructs race, though in doing so, I focused almost exclusively on law as a formal enterprise, as legislative action and judicial interpretation. The Chicano experience suggests that law constructs race in another way as well. It suggests that where legal violence against racialized communities is routine, that practice not only draws upon, but spurs, racial constructions. Specific studies must be done to understand the dynamics of racial formation vis-à-vis different communities at various times. Sadly, though, we can be confident that such studies will demonstrate that legal violence contributes to racial construction, both of non-Whites and Whites.

Professor, Boalt Hall School of Law, U.C. Berkeley.