The Legal Struggle for Ethnic Balancing in Schools: “De Facto” vs. “De Jure” Segregation – Some Historical Highlights

Historically, Hispanic children were segregated from Anglo children in many public school districts in the southwestern states. The legal struggle in the courts to rectify that segregation took several interesting turns as it (1) influenced and (2) was influenced by the litigation efforts by blacks to end racial segregation in the public schools.

A landmark case in the struggle for equality was Westminster School Dist. of Orange County et al. v. Mendez et al. (161 F.2d 774, 9th Circuit), decided April 14, 1947.

Sylvia Mendez was born in 1936 to a Mexican immigrant father and a Puerto Rican immigrant mother. When Sylvia was eight, her aunt took her, her siblings, and her nephews and tried to enroll the children in the “whites-only” school because it was superior to the ill-equipped wooden shack for Hispanic students. Sylvia’s aunt was told by school officials that her children, who had light skin, would be permitted to enroll, but that Sylvia and her brothers, who had darker skin and a Hispanic surname, could not enroll. Sylvia’s father, aided by civil rights attorney David Marcus, began a community movement to file a lawsuit in federal court in Los Angeles against four Orange County school districts — Westminster, Santa Ana, Garden Grove, and El Modena (now eastern Orange) — on behalf of about 5,000 Hispanic-American school children.

Sylvia Mendez as a child

The trial court found that segregation of Hispanic children violated the 14th Amendment. On February 18, 1946, Federal District Judge Paul J. McCormick ruled in favor of Mendez and his co-plaintiffs, stating:

The equal protection of the laws’ pertaining to the public school system in California is not provided by furnishing in separate schools the same technical facilities, text books and courses of instruction to children of Mexican ancestry that are available to the other public school children regardless of their ancestry. A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage.”

The defendant school districts appealed and argued that the plaintiffs had not stated a federal cause of action. The defendants said that since they were not authorized by California law to segregate the students, they were not acting within their authorized powers “as the state,” and hence were not covered by the 14th Amendment. The Ninth Circuit disagreed; it found that the school administrators acted “under color of state law,” even though they went beyond what state law authorized them to do. That is important because the 14th Amendment does not prohibit unequal treatment by individuals–only such treatment by the states.

A second major hurdle faced by the plaintiffs was a series of U.S. Supreme Court cases beginning with Plessy v. Ferguson that had sanctioned racial discrimination in public education, the so called “separate but equal” doctrine. The Ninth Circuit distinguished those cases by saying that the discrimination in each of those cases was expressly authorized by the relevant state statutes. Although California law specifically authorized segregation of Indians, Mongolians, and Japanese, it did not authorize segregation of Mexicans. Without such statutory authorization (which in effect said the schools were equal, and so there was “equal protection”), the state could not treat the children unequally. Note that the court did not find the California law that allowed segregation of Indians, Mongolians, and Japanese was unconstitutional.

A notable aspect of this case is that in the District Court, all parties stipulated that Mexican Americans were part of the white race. Therefore the case raised “no question of race discrimination.” This enabled the Circuit Court to avoid the “separate but equal” doctrine that applied to racial discrimination cases at the time.

Why did both sides agree to that stipulation? Thomas Saenz of the Mexican American Legal Defense and Educational Fund, opined that the plaintiffs likely sought the stipulation both to avoid the precedent of Plessy v. Ferguson and to avoid state law, “which, despite the Ninth Circuit’s conclusion, positively invited segregation of Mexican Americans in school.”

The defendant school districts’ reasons for agreeing to the peculiar “white race” stipulation, Saenz proposed,

seems to lie in the use of another proxy for racial discrimination. Consistent with the as-yet-undeveloped jurisprudence in the area of equal protection, the districts used the proxy of ethnic discrimination, seeking to distinguish it– in a way that would favor their discriminatory practices–from racial discrimination.” (Thomas A. Saenz, “Mendez and the Legacy of Brown: A Latino Civil Rights Lawyer’s Assessment,” Berkeley Women’s L.J., 2004, online here.)

Curiously (in light of subsequent litigation), neither the District Court nor the Circuit Court addressed the issue of whether Mexicans or Hispanics constituted a “protected class” to which the 14th Amendment’s protections could apply. Instead, the ruling in effect was that these specific students had been denied equal protection. The fact that they were Mexican did not matter because, after all, they were “white.”

The ruling was very narrow, but its tacit rationale was that segregation constitutes unequal protection, absent an express requirement of state law for separate but equal schools. This was something to build on for Brown v. Board of Education, in which the Supreme Court later ruled that “separate” was “inherently unequal.”

After the District Court’s ruling was upheld on appeal, then-Governor Earl Warren moved to desegregate all public schools and other public spaces as well. A bill to repeal Sections 8003 and 8004 of the Education Code, the last school segregation laws on California’s books, passed both the California Assembly and the Senate by a large majority and was signed into law by Governor Warren on June 14, 1947. [It should be noted, however, that while the Mendez case applied to de jure segregation, it did not apply to de facto segregation, which has actually increased, as discussed below.]

Commemorative Stamp issued by the U.S. Post Office in 2007

Several organizations had joined the appellate case as amicus curiae, including the ACLU, American Jewish Congress, Japanese American Citizens League, and the NAACP, which was represented by Thurgood Marshall. Marshall, the lead attorney in the case Brown v. Board of Education, used the arguments he developed for Mendez v. Westminster to argue the Brown case. By 1954, when the Brown case appeared before the high court, Earl Warren, also obviously influenced by Mendez, had become Chief Justice.

Chief Justice Earl Warren, appointed in 1953 and confirmed on March 1, 1954


Meanwhile, in Texas, Mexicans had long been considered “white,” with their coloring analyzed extensively in the case In re Rodriguez, 81 Fed. 337 (W.D. Texas, 1897). [The Court’s finding was based on the constraints of prior treaties made by the U.S. however, not on color.] This legal status did not preclude non-Hispanics from discriminating against Mexicans, nor from working out ways to segregate them in schools. In 1968, James DeAnda, a long-time Mexican rights attorney, brought a case against the Corpus Christi Independent School District (CCISD) on behalf of Mexican American and African American parents protesting the inferior conditions of schools available to their children in Corpus Christi [Cisneros v. Corpus Christi ISD, 324 F.Supp. 599 (S.D.Tex., 1970)]. As Steven H. Wilson explains, “DeAnda focused his CCISD complaint on the novel contention that the Brown rationale should apply to, and condemn, segregation of Mexican Americans.” [Steven H. Wilson, “Brown over Other White: Mexican Americans’ Legal Arguments and Litigation Strategy in School Desegregation Lawsuits,” Law and History Review Spring 2003 (27 Apr. 2012).]

DeAnda amassed evidence that Mexican Americans were in fact discriminated against and considered to be inferior to Anglos. Further, he showed maps of residential subdivisions that used to feature deed restrictions and now remained rigidly segregated. He then presented an impressive array of statistics to prove that the CCISD was set up as a “dual” school system that segregated Anglos from non-Anglos, blacks, and Mexican Americans. In other words, DeAnda insisted, per Wilson:

When the CCISD board drew attendance zones to match well-known segregated residential patterns, its members acted in their official capacity to perpetuate discrimination against the minority groups. Therefore, DeAnda submitted, they had transmuted de facto segregation into de jure segregation.”

District Judge Seals found for the plaintiffs, ruling in his oral opinion (324 F. Supp. 599 (S.D. Tex., 1970):

(1) that “Mexican-American students are an identifiable, ethnic-minority class sufficient to bring them within the protection of Brown“; (2) that “Mexican-American students in the Corpus Christi Independent School District are now separated and segregated to a degree prohibited by the Fourteenth Amendment in all three levels of the school system: elementary, junior high, and senior high”; (3) that “Negro students in the Corpus Christi Independent School District are also segregated to a degree prohibited by law * * *”; and (4) that although “some of the segregation was of a de facto nature,” the Corpus Christi Independent School District is fundamentally “a de jure segregated school system.”

U.S. District Judge Woodrow Seals

It is worth quoting in depth Judge Seals’ exposition on his fourth point:

As to whether or not the desegregation which has resulted in this dual system is de facto or de jure, the court is of the opinion that some of the segregation was of a de facto nature because of the socio-economic factors which caused Negroes and Mexican-Americans to live in the “corridor” (which we have described here as where they live, and which is similar to the ghettos of other cities), and because of the pattern of the geographic and demographic expansion of the city towards the south and southwest.

But this segregated and dual school district has its real roots in the minds of men; that is, the failure of the school system to anticipate and correct the imbalancing that was developing. The court is of the firm opinion that administrative decisions by the school board in drawing boundaries, locating new schools, building new schools and renovating old schools in the predominantly Negro and Mexican parts of town, in providing an elastic and flexible subjective, transfer system that resulted in some Anglo children being allowed to avoid the ghetto, or “corridor” schools, by bussing some students, by providing one or more optional transfer zones which resulted in Anglos being able to avoid Negro and Mexican-American schools, not allowing Mexican-Americans or Negroes the option of going to Anglo schools, by spending extraordinarily large sums of money which resulted in intensifying and perpetuating a segregated, dual school system, by assigning Negro and Mexican-American teachers in disparate ratios to these segregated schools, and further failing to employ a sufficient number of Negro and Mexican-American school teachers, and failing to provide a majority-to-minority transfer rule, were, regardless of all explanations and regardless of all expressions of good intentions, calculated to, and did, maintain and promote a dual school system. Therefore this court finds as a matter of fact and law that the Corpus Christi Independent School District is a de jure segregated school system. (324 F.Supp. 599 (1970), online here.)

Note that Judge Seals had to declare de facto as de jure in order to justify his opinion. This distinction again proved important when the Supreme Court took up the issue in 1973. While it declined to review Cisneros, it accepted a different school district case to examine the question of whether Hispanics are a “suspect” class such that they are entitled to protection under the equal protection clause of the Fourteenth Amendment. In Keyes v. School District No. 1, Denver, Colorado (413 U.S. 189), decided June 21, 1973, the Supreme Court observed:

…though of different origins, Negroes and Hispanics in Denver suffer identical discrimination in treatment when compared with the treatment accorded Anglo students. In that circumstance, we think petitioners are entitled to have schools with a combined predominance of Negroes and Hispanos included in the category of ‘segregated’ schools.”

Thus, the Court ruled that the District Court “erred in not placing Negroes and Hispanos in the same category, since both groups suffer the same educational inequities when compared with the treatment afforded Anglo students.”

Keyes was the first U.S. Supreme court case to rule on school segregation outside the South. It illustrated the enormously complicated factual situations that would be encountered in the North, where there was no history of state mandated segregation. In Keyes, the district court found that the school system had deliberately segregated black and Hispano students in Park Hill, an area constituting about 38% of the city. On the other hand, there had been no finding of “intentional” segregation in the rest of the city.

The Court was faced, as it would be in most northern cities, with a school system in which the segregation of students was effected in part by residential racial patterns (private actions, resulting in de facto segregation) rather than deliberate action of governmental authorities (state action, resulting in de jure segregation).

The case was remanded to the District Court to:

decide initially whether respondent School Board’s deliberately segregative policy respecting the Park Hill schools constitutes the whole Denver school district a dual school system…. Where, as in this case, a policy of intentional segregation has been proved with respect to a significant portion of the school system, the burden is on the school authorities (regardless of claims that their ‘neighborhood school policy’ was racially neutral) to prove that their actions as to other segregated schools in the system were not likewise motivated by a segregative intent.”

Justice Brennan’s majority opinion tried to ease the burden of proof on the plaintiffs where it was clear that there had been some de jure segregation. He stated:

…proof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system. Of course, where that finding is made, as in cases involving statutory dual systems, the school authorities have an affirmative duty ‘to effectuate a transition to a racially nondiscriminatory school system.’”

Justice William J. Brennan

In a concurring opinion that expressly disagreed with the reasoning of the majority, Justice Powell argued that the distinction between de facto and de jure segregation had been eroded by the evolution of doctrine in the years since the Brown cases. He noted that southern cities had made much more progress than northern cities in desegregating their schools:

No comparable progress has been made in many nonsouthern cities with large minority populations, primarily because of the de facto/de jure distinction nurtured by the courts and accepted complacently by many of the same voices which denounced the evils of segregated schools in the South. But if our national concern is for those who attend such schools, rather than for perpetuating a legalism rooted in history rather than present reality, we must recognize that the evil of operating separate schools is no less in Denver than in Atlanta.”

Despite his argument that “the principal reason for abandonment of the de jure/ de facto distinction is that, in view of the evolution of the holding in Brown I into the affirmative duty doctrine, the distinction no longer can be justified on a principled basis,” he was unable to convince any of his brethren to concur with his aggressive reading of the prior cases.

Justice Lewis F. Powell

In dissent, Justice Renquist pointed out how challenging it was to assess the constitutionality of a school board’s actions:

Far greater difficulty is encountered if we are to assess the intentions with which official acts of a school board are performed over a period of years. Not only does the board consist of a number of members, but the membership customarily turns over as a result of frequent periodic elections. Indeed, it was as a result of the 1969 election for membership on the Denver School Board that the Board’s policy which had previously favored the correction of racial imbalance by implementation of resolutions was reversed by the election of new members to the Board.”

Renquist’s warning was prescient. Despite Justice Brennan’s effort to ease the burden of proof for aggrieved students, the 14th Amendment proved to be a difficult tool for implementing desegregation in the North. For example, the Keyes case was litigated for thirty years before concluding. And today, Latino and black students are more likely than ever to be attending segregated schools, largely a function of the composition of the areas in which they live, which in turn is strongly affected by poverty. See research reported by The Civil Rights Project and researchers at the Harvard Graduate School of Education (now located at UCLA where you can find updates to the Harvard research) here, noting that:

Latinos, who are fast becoming the largest minority group in the country, attend the most severely segregated schools. Latino segregation has been increasing ever since data was first collected in the 1960s….”

See also the data in this 2017 article on “Racial and Educational Segregation in the U.S.

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