Keyes v. School District No. 1 Denver, CO. Motion for Leave to File Brief and Brief Amici Curiae

    Jtt %  $uprettt? (Eourt
OF THE

O cto ber  T e r m , 1971

No. 71-507

W il f r e d  K e y e s , e t  a l., Petitioners,
vs.

S c h o o l  D is t r ic t  N o . 1, D e n v e r , C olorado , e t  a l., 
Respondents.

On W rit of Certiorari to the United States 
Court of Appeals for the Tenth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
and

BRIEF AMICUS CURIAE OF THE MEXICAN AMERICAN 
LEGAL DEFENSE AND EDUCATIONAL FUND

M ario  G. O bled o ,
M ic h a e l  M e n d e l s o n ,
A l a n  E x e le o d ,

145 Ninth Street,
San Francisco, California 94103,
Telephone: (415) 626-6196,

Attorneys for Amicus Curiae.

P E R N A U - W A L S H  P R I N T I N G  C D . S A N  F R A N C I S C O ,  C A L I F O R N I A



Jtt %  g’uprem? Qhrart
OF THE

States

O ctober  T e r m , 1971

No. 71-507

W il f r e d  K e y e s , e t  a l., Petitioners,
YS.

S c h o o l  D is t r ic t  N o . 1, D e n v e r , C olorado, et al., 
Respondents.

On W rit of Certiorari to the United States 
Court of Appeals for the Tenth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The Mexican American Legal Defense and Edu­
cational Fund moves this Honorable Court for leave 
to file the attached Brief Amicus Curiae.

Petitioners’ attorney has granted consent for the 
filing of this brief. The consent of Respondents’ at­
torney was requested but refused.

The Mexican American Legal Defense and Edu­
cational Fund (MALDEF) is a non-profit corporation 
organized under the laws of the State of Texas whose



2

purpose is the protection of the civil rights of Spanish 
surriamed people in the Southwest. In pursuance of 
this purpose MALDEF has represented clients in 
matters involving employment discrimination, voting 
rights, and public accommodations discrimination. 
However, it is in the area of improving the educa­
tional process that MALDEF has devoted much of 
its resources.

Although Mendez v. Westminster School District, 
64 F.Supp. 544 (C.D. Cal.) air'd 161 F.2d 774 (9th 
Cir. 1947) held that school segregation against Chi­
canes* violated the equal protection clause, there has 
never been a holding by this Court to that effect. The 
Chicane community in the Southwest continues to 
attend segregated inferior schools.

This community believes that a quality educational 
program in an integrated setting provides the only 
hope for equal educational opportunity. As a result 
of this mandate MALDEF is counsel for Chicano 
parents and children in lawsuits throughout the South­
west including Dallas, Houston, Austin, El Paso and 
New Braunfels, Texas; Fullerton, California; Glen­
dale, Arizona; Portales, New Mexico. These cases; 
attack segregated schools and discriminatory treat­
ment. Consequently, the- whole Chicano community and 
MALDEF are vitally interested in the outcome of 
this case.

*His.pano is the word used in the record to denote Spanish 
speaking people in Denver. However, Chicano is the preferred 
name for Spanish speaking people in the Southwest.



3

MALDEF requests permission to file this brief in 
order to present an issue only touched upon by 
Petitioners; why Chicanos are an identifiable class 
for Fourteenth Amendment purposes. In addition, 
Amicus believes the constitutional wrongs which Chi­
canos have suffered over the years need elucidation 
before this Court.

Wherefore, MALDEF prays that this Court grant 
leave to file the attached Brief Amicus Curiae.

Dated, May 4, 1972.
Respectfully submitted,

M ario  Gr. O bled o ,
M ic h a e l  M e n d e l s o n ,
A i .a u  E x elr o d ,

Attorneys for Amicus Curiae.



Subject Index

Interest of the amicus curiae .....................................................  5

Summary of the argument .........................................................  6

Argument ......................................................................................  7

I. Introduction ....................................    7

II. Chieanos comprise an identifiable class for purposes of 
the equal protection clause of the Fourteenth Amend­
ment ....................................................................................  g
A. The Chicano in the Southwest has suffered social,

economic and political discrimination ...................... 8

B. The courts have held Chieanos to be a class pro­
tected by the equal protection clause ...................... 11

III. Chicano students have been segregated and denied an 
equal educational opportunity in the Denver School 
System and therefore appropriate remedies must be 
created to alleviate this denial of equal protection.. . .  14
A. Chieanos in the State of Colorado and the City of

Denver have suffered the same discriminatory 
treatment as Chieanos in other parts of the 
Southwest ..................................................................  14

B. Chieanos have been segregated and denied an

Page

equal educational opportunity in Denver ............ 15
C. The trial court correctly found that inequalities

existed in the minority schools, but it also should 
have ruled that racial and ethnic isolation was 
caused by school district policies and practices.. . .  19

D. Comprehensive desegregation is an appropriate
remedy to correct the existing constitutional 
wrong ..........................................................................  20

E. The trial court correctly ordered a program for
equalization of educational opportunities.............. 25

Conclusion ...................................................................................... 27



Table of Authorities Cited

Cases Pages
Alvarado v. El Paso Independent School District, 445 F.2d 

1011 (5th Cir. 1971) ............................................................. 18

Beare v. Smith, 321 F.Snpp. 1100 (S.D. Tex. 1971) .......... 9
Beltran v. Patterson, U. S. District Court for the Western

District of Texas, No. 68-59-W ...........................................  9
Brown v. Board of Education, 347 U.S. 483 (1954) .......... 11

Cantwell v. Conn., 310 U.S. 296 (1940) .....................................  24
Castro v. State, 2 Cal. 3d 223, 466 P. 2d 244 (1970) .......... 9,12
Chance v. Board of Examiners, 330 F. Supp. 203 (S.D.N.Y.

1971) aff’d .....  F. 2d .....  (2nd Cir. 1972) ...................... 13
Cisneros v. Corpus Christi Independent School District, 324

F. Supp. 599 (S.D. Tex. 1970) .................................................  8,12
Clifton v. Puente, 218 S.W. 2d 272 (Court of Civil Appeals

Tex. 1948) ................................................................................  8
Crawford v. Los Angeles Unified School District, Superior 

Court for the County of Los Angeles, California, No. 
822854 ......................................................................................  24

Green v. County School Board of New Kent County, 391 
U. S. 470 (1968) ..................................................................  23

Hernandez v. Texas, 347 U. S. 475 (1954) ..................8,11,12,13

Johnson v. San Francisco Unified School District, United 
States District Court for the Northern District of Cali­
fornia, No. C-70 1331 SAW .................................................  24

Jones v. Albert Mayer & Co., 392 U. S. 409 (1968) .......... 7

Loving v. Virginia, 388 U. S. 1 (1967) ................................. 24

Marquez v. Ford Motor Co., 440 F. 2d 454 ( 8th Cir. 1971) 9
McDonald v. Board of Election Comm’rs, 394 U. S. 802

(1969) ......................................................................................  24
McLaughlin v. Florida, 379 U. S. 184, 192 (1963) .............. 24
Muniz v. Beto, 434 F. 2d 697 (5th Cir. 1970) ....................  12

New York Times v. Sullivan, 376 U. S. 254 (1964) .....  24



T able of A u thorities  C ited

Perez v. Sonora Independent School District, United States 
District Court, for the Northern District of Texas, No. 
CA-6-224 ..................................................................................  8

Regester v. Bullock, United States District Court for the
Western District of Texas, No. A-71-CA-143 ................9,10,12

Rodriguez v. San Antonio Independent School District, 337
F. Supp. 280 (W.D. Tex. 1972) .........................................  13

Ross v. Eckels, 434 F. 2d 1140 (5th Cir. 1970) ..................23,24

Shelley v. Kraemer, 334 U. S. 1 (1948) ...............................  24
Soria v. Oxnard School District Board of Trustees, 328 F.

Supp. 155 (C.D. Cal. 1971) ...............................................  13

Tasby v. Estes, United States District Court for the 
Northern District of Texas, No. 3-4211-C ......................... 13, 24

Urquidez v. General Telephone Co., 2 EPD 1(10,145 (D.C.
N. Mex. 1970) ........................................................................  9

U.S. v. Jefferson Co., 380 F. 2d 385, 39364 (5th Cir.
1967) ........................................................................................  25

U.S. v. Longshoremen’s Union, 4 EPD ft7687 (S.D. Tex.
1970) ..................................... . . . ............................................  9

U.S. v. Texas, 252 F. Supp. 234 (W.D. Tex. 1966) .......... 9
U.S. v. Texas, United States District Court for the Eastern

District of Texas, No. 5281 (E.D. Tex. 1971) .................. 13
U.S. v. Texas Education Agency (Austin I.S.D.), United 

States District Court for the Western District of Texas,
No. A-70-CA-80 ....................................................................... 13,24

ii i

Pages

Other Authorities
Burma, John—Mexican Americans in the United States,

1970 .......................................................................................... 9

Carter, Thomas—Mexican Americans in School: A History
of Educational Neglect, 1970, pp. 67-74 .............................  10

Coleman, James Dr.—Equality of Educational Opportunity 21 
Colorado Commission on Spanish Surnamed Citizens, Report 

to the Colorado General Assembly—The Status of Spanish 
Surnamed Citizens in Colorado, Jan. 1967 ....................... 14,15



Grebler, Moore, Guzman—The Mexican American People:
The Nation’s Second Largest Minority, p. 1970 ................ 15

Hearings Before the Select Committee on Equal Educa­
tional Opportunity of the U.S. Senate, 91 Congress, Sec­
ond Session, Part 4, Mexican American Education, Aug,
18-21, 1970 ..............................................................................  9

Reynoso, Cruz—La Raza, The Law and the Law Schools,
1970 U. Tol. L.R. 809 (1970) ...............................................  9

Salinas, Guadalupe—Mexican Americans and Desegregation 
of the Schools in the Southwest, 8 Houston L.R. 929 
(1971) ......................................................................................  9

Schmidt, Fred—Spanish Surnamed Employment in the 
Southwest, U.S. Civil Rights Commission .........................  9,15

U.S. Commission on Civil Rights, Mexican Americans and 
the Administration of Justice in the Southwest, 1970___ 9

U.S. Commission on Civil Rights, Mexican American Study 
Project Report No. 1 ............................................................. 9

U.S. Commission on Civil Rights, The Unfinished Revolu­
tion, Mexican American Study Project Report No. 2. .. . 10

Statutes and Constitutional Provisions
Arizona Revised Stats., Sec. 16-101 ......................................  9

Bilingual Education Act, 20 TJ.S.C., Section 880 .................. 26

United States Constitution:
14th Amendment, §1 (equal protection). .6, 8,11,12,14, 22, 24

Title VII of the Civil Rights Act of 1964 .............................  12

iv  Table oe A uthorities Cited

Pages



In %  g»upmn? (Enurt
OF THE

O ctober  T e r m , 1971

No. 71-507

W il f r e d  K e y e s , e t  a l., Petitioners, 
vs.

S c h o o l  D is t r ic t  N o . 1, D e n v e r , C olorado, e t  a l., 
Respondents.

On W rit of Certiorari to the United States Court 
of Appeals for the Tenth Circuit

BRIEF AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE

The Mexican American Legal Defense and Edu­
cational Fund is a non-profit corporation established 
in 1968 under the laws of the State of Texas. Its 
purpose is to represent Spanish surnamed people in 
the Southwest whose civil rights are being violated. 
MALDEF offices are located in San Francisco, Los 
Angeles, San Antonio and Denver.

A primary goal of the organization since its in­
ception has been to end the patterns of ethnic isolation 
and inferior schools that pervade the Southwest. To



6

this end MAL I) EF is representing clients throughout 
the Southwest. See the Motion for Leave to File an 
Amicus Brief. Since it is likely that these eases will 
be strongly affected by the outcome of this ease, MAL- 
DEF has an immediate direct interest in this lawsuit.

SUMMARY OF THE ARGUMENT

Amicus curiae make the following argument:
Chieanos in the Southwest are subject to deeply 

ingrained patterns of economic, political and educa­
tional discrimination. As a result, they are entitled to 
be considered an identifiable class for equal protection 
clause purposes. The demographic data and the evi­
dence in this record prove that Chieanos in Denver 
have been discriminated against in this traditional 
Southwestern manner.

The District Court erred in refusing to find that, 
Chieanos had been segregated by policies and prac­
tices of the Denver school district. The record showed 
a consistent unlawful pattern of discrimination in 
student and faculty assignment practices. The Dis­
trict Court correctly ruled that inequalities in educa­
tion existed at minority schools. However, it erred in 
distinguishing between schools that had over 70'% of 
one minority and schools that had over 70|% of the 
two minorities, Negro and Chicano, for purposes of 
relief. The purposes of desegregation are not accom­
plished by integrating two economically and educa­
tionally disadvantaged minority groups.



7

The Court of Appeals erred by rejecting the equal­
ization plan adopted by the District Court. The Dis­
trict Court’s plan in regard to Spanish language 
training, teaching of Chicano culture and use of 
teacher aides was an appropriate use of his equitable 
powers to correct a proven constitutional wrong.

ARGUMENT
I. INTRODUCTION

The Chicano1 is the forgotten minority.2 He is the 
largest minority group in the Southwestern United 
States, He is the field hand. He is the janitor. Much 
as the Negro was. foreeably made part of this nation 
as a slave and still today bears the badges of this 
servitude, Jones v. Albert Mayer & Go., 392 U.S. 409 
(1968), so too were Chieanos foreeably made part of 
this nation—they were the vanquished remnants., con­
quered heirs of the Spanish Conquistadores, Their 
vanquishment has made them exiles in their own land 
—the dominant Anglo3 society has treated them as 
second class citizens,

Chieanos in Denver and the Southwest generally 
receive an inferior education, suffer occupational dis­
crimination, and are deprived of crucial political 
rights and power that would allow them to change

1Hispano. is the word used in the record to denote Spanish 
speaking people in Denver. However, Chicano is the preferred 
name for Spanish speaking people in the Southwest.

2The Southwest for purposes of this brief includes Arizona, 
California, Colorado, New Mexico and Texas.

3An Anglo is a non-Spanish surname! member of the Caucasian 
race.



8

their socio-economic status through the political proc­
ess. The opinion of the courts in this case does not 
overtly describe this exclusion of the Chicano. The 
purpose of this brief is to inform the Court of the 
plight of the Chicano and to help the Court under­
stand why the remedies of desegregation and equal­
ization are so important to him.

II. CHICANOS COMPRISE AN IDENTIFIABLE CLASS FOR PUR­
POSES OF THE EQUAL PROTECTION CLAUSE OF THE 
FOURTEENTH AMENDMENT

A. The Chicano in the Southwest Has Suffered Social, Economic 
and Political Discrimination

The Chicano has been subjected to the traditional 
methods used to create second class citizenship. He 
has been segregated in swimming pools,4 hospitals,5 
movie theaters,6 toilet facilities.7 Racial and ethnic 
restrictive covenants in real estate deeds regularly 
included Chicanes.8 The result was segregated barrios9 
and little opportunity to move into Anglo neighbor­
hoods.

The administration of justice has been infected 
with the evil of second class citizenship for the Chi-

4Beltran v. Patterson, U. S. District Court for the Western 
District of Texas, No. 68-59-W.

^Cisneros v. Corpus Christi Independent School District, 324 
F.Supp. 599, 613 (S.D. Tex. 1970) appeal pending1.

6Perez v. Sonora Independent School District, U. S. District 
Court for the Northern District of Texas, No. CA-6-224.

7Hernandez v. Texas, 347 U.S. 475, 480 (1954).
8Clifton v. Puente, 218 S.W.2d 272 (Court of Civil Appeals 

Texas 1948). ref.
9That part of town where Chicano homes are concentrated.



9

caiio.10 The Texas Rangers hired their first Chicane 
two years ago. There are few Chicane district attor­
neys, judges,11 or even law students.12 Employment 
discrimination has been documented extensively.13

Political rights were for a long period suppressed 
but only recently have the courts opened up; the 
political process.14

I t  is in the area of education that the; Chicane 
suffers extraordinary deprivation. Segregation prac­
tices are widespread.15 16 The reasons for the discrim­
ination are much like those used to justify segregation

10U. S. Commission on Civil Rights, Mexican Americans and the 
Administration of Justice in the Southwest, 1970.

11Ibid, p. 48.
12Reynoso, Cruz, La Raza, The Law and the Law Schools, 170 

U.Tol.L.R. 809 (1970).
13Schmidt, Fred, Spanish Surnamed Employment in the South­

west published by U. S. Civil Rights Commission. Burma,, John, 
Mexican Americans in the United States, 1970 p. 147-208. For 
case law see Marquez v. Ford Motor Co., 440 F.2d 457 (8th 
Cir. 1971). Urquidez v. General Telephone Co., 2 EPD 1(10,145 
(D.C. N.Mex. 1969), U. S. v. Longshoremen’s Union, 4 EPD 
1J7687 (S.D. Tex. 1970).

14Texas had a poll tax which keep the Chicano poor from the 
polling place, U. S. v. Texas, 2,52 F.Supp. 234 (W.D. Tex. 1966)
and a restrictive registration procedure which excluded Chicanes, 
Beare v. Smith, 321 F.Supp. 1100 (S.D. Tex. 1971). California 
had literacy requirements which prevented even thosfe' fully liter­
ate in Spanish from voting, Castro v. State, 3 Cal.3rd 223, 466 
P.2d 244 (1970). Arizona similarly had stringent literacy re­
quirements. Ariz. Revised Stat. §16-101. See also Regesier v. 
Bullock, U. S. District Court for the Western District of Texas, 
No. A-71-CA-143 (Holding multi-member state representative 
districts discriminated against Chicanes).

16For information about the isolation of Chicano school children 
see U. S. Commission on Civil Rights, Mexican American Study 
Project Report No. 1; Salinas, Guadalupe, Mexican Americans 
and the Desegregation of Schools in the Southwest, 8 Houston 
L.R. 929 (1971); Hearings before the Select Committee on Equal 
Educational Opportunity of the U. S. Senate, 91 Congress Second 
Session, Part 4, Mexican American Education, Aug. 18-21, 1970.



10

in the South,16 The result of this segregation with 
its creation of inferior status has been a dismal record 
of achievement in the schools. In 1960 in the South­
west the median years of school of Chicanos 25 years 
and older was 7.1 as compared to 12.1 for Anglos and 
9.0 for non-whites,16 17 Drop-out rates for Chicanos even 
today are considerably higher than for any other 
racial or ethnic group.18 19 Later portions of this brief 
will re-veal that the Denver school system fits too 
easily into- this Southwestern pattern of segregation 
and inferior education.

The Chicano is living this legacy of a conquered 
people. Applying the words of a Texas Federal Court 
to the Southwest generally:

“Because of long standing, educational, social, 
legal, economic, political and other widespread 
and prevalent restrictions, customs, traditions, 
biases and prejudices, some of a so-called de jure 
and some of a so-called de facto character, the 
Mexican American population of Texas . . . has 
historically suffered from and continues to suffer 
from, the results and effects of invidious discrimi­
nation and treatment in the fields of education, 
employment, economies, health, politics and 
others,”18

16 Carter, Thomas, Mexican Americans in School; A  History of 
Educational Neglect. 1970, pp. 67-74.

17IMd., p. 23.
18U. S. Commission on Civil Eights, The Unfinished Revolution, 

Mexican American Study Series Part II  1971, p. 20.
19Regester, supra, Note 14, p. 45.



11

B. The Courts Have Held Chicanos To Be A Class Protected 
By The Equal Protection Clause

This Court, shortly before deciding the landmark 
case for Negro Americans, Brown v. Bd. of Education, 
347 U.S. 483 (1954), recognized for the first time that 
Chicanos are also entitled to Fourteenth Amendment 
protections. In Hernandez v. Texas, 347 U.S. 475 
(1954), the total exclusion of Chicanos from grand 
juries was proven. The Court in finding this uncon­
stitutional stated:

“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 law. But com­
munity prejudices are not static, and from time 
to time other differences from the common 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 ex­
istence 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 treat­
ment not based on some reasonable classification, 
the guarantees of the Constitution have been vio­
lated. The1 Fourteenth Amendment is not directed 
solely against discrimination due to a Two-class’ 
theory—that is, based upon differences between 
‘White’ and ‘Negro’.” 347 U.S. at 478.

The Chieano community was at first slow to use the 
potent combination of Hernandez and Brown to> rem­
edy the pervasive discrimination described in Section 
I I  A above. But in recent years, one court after an­
other has held that the constitutional guarantees of



12

the Fourteenth Amendment apply to Chicanos no less 
than to Negroes. For example, the Hernandez rule 
regarding discrimination against Chicanos in the com­
position of grand juries has been applied to a large 
Texas city, Muniz v. Beto, 434 F.2d 697 (5th Cir. 
1970). Chicano political rights are now being protected 
under the Fourteenth Amendment, see Reg ester, su­
pra, Note 14, Castro v. State, supra, Note 14. Em­
ployment discrimination under Title V II of the Civil 
Rights Act of 1964 has been proven, see eases cited 
in Note, 13, supra.

Because education is at the root of many of the 
socio-economic problems of the Chicano, there has 
been considerable litigation attempting to undo school 
segregation. Courts have been most diligent in elabo­
rating upon the reasons for considering Chicanos an 
identifiable class for equal protection purposes in 
these cases. In Cisneros v. Corpus Christi I.S.D., 324 
F.Supp. 599, 607 (SJD. Tex. 1970) appeal pending, 
the Court observed:

“. . . [I] t is clear to this Court that these people 
for whom we have used the word Mexican Amer­
icans to describe their class, group, or segment 
of our population, are an identifiable ethnic 
minority in the United States, and especially so 
in the Southwest [and] in Texas, . . . This is not 
surprising; we can notice and identify their phys­
ical characteristics, their language, their pre­
dominant religion, their distinct culture, and, of 
course, their Spanish surnames. And if there 
were any doubt in this court’s mind, this court 
could take; notice, which it does, of the congres­
sional enactments, government studies and com­
missions on this problem.”



13

See also U.S. v. Texas, LT.S. District Court for the 
Eastern District of Texas, No. 5281 (E.D. Tex. 1971) ; 
Soria v. Oxnard School District Board of Trustees, 
328 F.Supp. 155 (C.D. Cal. 1971); Alvarado v. El 
Paso Independent School District, 445 F.2d 1011 (5th 
Cir. 1971). Even where courts have refused, to find 
that de jure segregation has been practiced against 
Chicanes, they have held that Chicanos are an identi­
fiable minority group, cf. Tasby v. Estes, U.S. Dis­
trict Court for the Northern District of Texas, No. 
3-4211-C, appeal pending. U.S. v. Texas Education 
Agency (Austin I.S.D.), U.S. District Court for the 
Western District of Texas, No-. A-70-CA-80, appeal 
pending.20

The legal reality of the Chicanos’ situation in the 
Southwest has seen courts remedy past legal depriva­
tion only recently. Political, economic and educational 
freedoms have only now begun to receive constitu­
tional protection by the courts. A holding that Chi­
canos are not a separate identifiable class would have 
widespread repercussions in all areas of the law as it 
is developing in the Southwest. Eor these reasons 
Amicus urge this Court to reaffirm Hernandez• 
to hold that Chicanos are, historically, a deprived 
class, and are thereby, an identifiable group, 
entitled to receive protection under the Fourteenth 
Amendment.

20Sehool financing systems have also discriminated against Chi­
canos. Rodriguez v. San Antonio I.S.D., 337 F.Supp. 280, 282 
(W.D. Tex. 1972) appeal pending U. S. Supreme Court. See also 
Chance v. Bd. of Examiners, 330 F.Supp. 203 (S.D.N.Y. 1971)
aff’d .....  F.2d .....  (2nd Cir. 1972) where an examination for an
administrative position in the public schools was held to dis­
criminate against Puerto Ricans.



14

III. CHICANO STUDENTS HAVE BEEN SEGREGATED AND 
DENIED AN EQUAL EDUCATIONAL OPPORTUNITY IN THE 
DENVER SCHOOL SYSTEM, AND THEREFORE APPROPRI­
ATE REMEDIES MUST BE CREATED TO ALLEVIATE THIS 
DENIAL OF EQUAL PROTECTION.

A. Chicanos In The State of Colorado And The City of Denver 
Have Suffered The Same Discriminatory Treatment As Chi­
canos In Other Parts of The Southwest

The most comprehensive study about the condition 
of the Chicano in Colorado ever written concludes : 

“In general, the average Spanish surnamed res­
ident. of Colorado belongs to most of the following 
minority groups and possesses the traits associ­
ated with these groups.

1. The poor;
2. The poorly educated;
3. The unhealthy;
4. The victims of discrimination;
5. The illhoused;
6. The rural folk;
7. The Spanish-Mexican-American tradition;
8. The law violator ;
9. The legally unprotected;

10. The politically unrepresented.”21

These conclusions are borne out by the available data.
In the area of employment, Chicanos are under­

represented at all levels of the job rolls and over­

21Colorado Commission on Spanish-Surnamed Citizens, Report 
to the Colorado General Assembly: The Status of Spanish Sur­
named Citizens in Colorado, Jan. 1967, p. 15.



15

represented on the unemployment rolls.22 “Employ­
ment rosters within Colorado public institutions gen­
erally show a very low incidence of Spanish-surnamed 
employees.” “I t  is clear from this data [on munici­
palities] that the Spanish-surnamed population is ex­
tremely under-represented in public employment in 
general.”23 A recent study shows that in Denver the 
same pattern prevails. Although 9.3% of the total 
work force in three of the most important industries 
in Denver are “Officials and Managers”, only 1.3% 
of the Chicanes are in this category. 82% of employed 
Chieanos in these industries are in blue collar jobs, 
nearly twice the percentage in the total work force.24

Health conditions reveal “a serious differential be­
tween the Spanish-surnamed and the general popula­
tion.”25 Mortality rates show that Chieanos die on an 
average of ten years earlier than the rest of the 
population.26

Housing segregation in Denver is acute and is worse 
than the Southwest generally.27
B. Chieanos Have Been Segregated and Denied An Equal Edu­

cational Opportunity in Denver

The education afforded Chicano students in the 
defendant school district mirrors the inferior educa­

22Ibid., p. 27, “The figures show that the percent of all unem­
ployed which is Spanish surnamed is, in most countries, signifi­
cantly higher than the percent of the labor force which is 
Spanish-surnamed. ’ ’

™IMd., p. 35.
24Schmidt, supra, Note 13, p. 16.
25Colorado Commission, supra, p. xviii.
26Schmidt, supra, p. 55.
27Grebler, Moore, Guzman, The Mexican American People: The 

Nation’s Second Largest Minority, 1970, p. 277.



16

tion provided in the Southwest generally. Ethnic iso­
lation and unequal treatment pervade the Denver 
school system.

Chicanos are in large part isolated from the ma­
jority Anglo community. Several schools are almost 
totally Chieano (App. 2040a). Many Chicane children 
attend school with Negroes, the other disadvantaged 
minority in Denver. 31.6% of Chieano elementary 
students attend schools that are over 75% minority 
(App. 2038a). 28 out of 93 elementary schools in the 
district are over 50% minority (App, 2040).

The sources of this racial and ethnic isolation are 
the policies and practices of the defendant school 
district. The district assigned minority faculty to 
minority schools because the Anglo community re­
fused to permit these teachers in the Anglo schools 
(303 F'.Supp. at 294). The district maintained a 
neighborhood school policy that was shot through with 
optional zones to allow Anglo children to escape min­
ority schools, The district constructed the predomin­
antly minority New Manual High School with just 
enough capacity to insure that it would remain a 
minority school. The district maintained enrollment 
at minority schools under capacity while overcrowding 
Anglo schools to avoid mixing the two groups (313 
F.Supp. at 71).

Whatever nonracial explanations are conjured up 
for these actions, the simple fact remains, the op­
erative effect of the school board assignment policies 
was to exclude Negroes and Chieano® from Anglo 
schools and to place Negroes and Chicanos together in 
predominantly minority schools.



17

Along with segregation, the school district provided 
distinctly unequal educational opportunities for mi­
nority students.

Looking first to teacher assignment policies, the 
record reflects that in 1968: 1. The minority schools 
had almost twice as many probationary teachers as 
the Anglo schools (App. 2062a); 2. The minority 
schools had less than one half as many teachers with 
10 or more years experience in the Denver public 
schools than the Anglo schools (App. 2064a) ; 3. The 
median years of Denver public school experience of 
teachers in minority schools was less than half that 
of Anglo schools (App. 2066a).

Turning next to physical facilities, Anglo schools 
are on the average half the age of minority schools 
(App. 2070a,). Although these schools were built at 
a time when there was much more land available in 
urban areas than at present, minority schools have 
considerably less land per child than Anglo schools 
(App. 2068a).

In the area of curriculum, the Voorhees Report 
(Plaintiff’s Exhibit 20) implies that the existing uni­
form curriculum throughout the school system met 
the needs of the Anglo majority but not the needs of 
the disadvantaged minorities. The same treatment in 
this ease was in fact “unequal” treatment.

The results of this disparity in treatment are pre­
dictable. Achievement levels at the minority schools 
fall far below those at the Anglo schools at every stage 
of the education process.



18

Stanford A chievement Tests, April  1969 
Mean  Scores B y School and Grade 

(A p p . 2102a, 2104a)
Grade Level A t W hich  Tests W ere A dministered

2.6 3.6 4.6 5.6 6.6
Average Grade Level 
Score for Minority Schools 2.27 2.85 3.58 4.42 4.91
Average Grade Level 
Score for Anglo Schools 3.12 4.26 5.44 6.53 7.01

One need only compare Plaintiff’s Exhibit 375 (App. 
2094a.) with Plaintiff’s Exhibit 372 (App. 2088a), 
which show that achievement levels at the minority 
schools in Northwest Denver are considerably lower 
than at Anglo schools in the Southwest, to understand 
fully the impact of unequal educational opportunity.

If  more proof is necessary, let us check the ultimate 
test of a school system, the extent to which students 
complete high school. I t  is here that the human 
tragedy resulting from unequal treatment and low 
achievement are reflected. The Chicano drops out 
earlier and in greater numbers in Denver than either 
of the other two groups. By seventh grade some Chi­
cano students are lost from the schools and by twelfth 
grade, the exodus is a torrent.

School P opulation Statistics B y Race, and 
E thnic  Origin for 1968

Chicano Negro Anglo Other
No. % No. % No. % No. %

Sr. High School 
(Grades 10-12) 2,996 12.8 2,447 10.4 17,821 76.1 160 .7
Jr. High School 
(Grades 7-9) 3,629 19.5 2,888 15.5 11,886 64.0 173 1
Elementary School
(K-6) 11,986 22.0 8,304 15.2

(These figures are from App. 2038a).
33,678 61.7 608 1.1



19

Amicus has demonstrated that Chicanes in the 
Southwest are subject to the same kind of overt and 
subtle differences in treatment as Negroes in this 
country. The discrimination documented above proves 
that the Denver school system is but a microcosm of 
the educational system of the Southwest.

C. The Trial Court Correctly Found That Inequalities Existed 
In The Minority Schools, But It Also Should Have Ruled 
That Racial And Ethnic Isolation Was Caused By School 
District Policies and Practices

The trial court concluded that except for those 
schools dealt with in the 1969 school hoard resolutions, 
nonracial explanations for ostensibly segregating prac­
tices prevented a finding of de jure segregation. 
Amicus urges this Court to reverse this finding. Racial 
and ethnic motivations pervaded the decisions of the 
Denver school board. The evidence on inequalities in 
school services is self-explanatory. The trial court 
additionally found that the school board was aware 
of the effect of its policies but practiced “eye-closing” 
and “head-burying” (313 F.Supp. at 76) to avoid in­
tegration. Further, the Court found that the decisions 
of the school board were dictated by a consensus of 
the community (313 F.Supp. at 73). However, this, 
controlling Anglo28 consensus was in part responsible 
for the existing housing segregation.29 Because the 
primary contributors to the consensus were those who 
helped establish segregated housing patterns, their 
intent to segregate should be imputed to the board.

28Negroes and Chicanos never seemed to be a part of this con­
sensus. (313 F. Supp. at 70, 71)

29“ [I]f cause or fault has to be ascertained it is that of the 
community as a whole in imposing, in various ways, housing 
restraints.” (313 F. Supp. at 75)



20

In regard to unequal educational opportunities the 
trial court concluded :

“The evidence in the case at bar establishes, and 
we do find and conclude, that an equal educational 
opportunity is not being provided at the subject 
segregated schools within the District. . . . The 
evidence establishes this beyond any doubt.”

Amicus agrees with this determination. However, 
the court erred in leaving out of its list of schools 
those where the combined total of Negro and Chieano 
students was over 70% but neither of the groups was 
individually over 70%. The same factors of teach­
er turnover, inferior physical facilities, and lower 
achievement are present in these over 70% black and 
Chieano schools (App. 2122a, 2124a), and therefore 
the same relief should be afforded.

The Court of Appeals reversed the trial court with 
regard to both the desegregation and equalization 
remedies. It, did not deny the existence of the inequali­
ties but by using the wrong constitutional standard 
and disregarding these inequalities the appellate 
court found no state action. The error in the appel­
late court’s reasoning is manifest and Amicus defers 
to Petitioners’ argument on this issue (Brief of Pe­
titioners, p. 114).

D. Comprehensive Desegregation Is An Appropriate Remedy 
To Correct The Existing Constitutional Wrong

After hearing extensive evidence on the issues of 
relief the trial court concluded:

“. . . The only feasible and constitutionally ac­
ceptable program—the only program which fur­



21

nishes anything approaching substantial equality 
—is a system of desegregation and integration 
which provides compensatory education in an 
integrated environment” (313 F.Supp. at 96).

This decision was clearly correct and within its equi­
table powers.

Those reasons normally supporting desegregation as 
a remedy exist in full force in Denver. Students will 
have heterogeneous, cross-cultural experiences, physr 
ical facilities at the inferior school will improve, 
teacher turnover will be reduced and the psychological 
stigma attached to attending an inferior school will 
be eliminated. For the Chicano, an important addi­
tional reason exists for desegregation. He often conies 
to school speaking Spanish as his mother tongue. To 
isolate him with other Spanish speaking students as 
the school district has done in the Elmwood, Fairmont 
and Fairview Elementary Schools deprives him of the 
opportunity to use his adopted language, English. 
That is not to say that his retention and development 
of Spanish should not be encouraged; however, he 
will never receive a balanced language learning ex­
perience in his most crucial years unless he is placed 
in a position to use Spanish on a regular basis. Often­
times the only chance he has to speak English is at 
school because at home, the language in common use 
is Spanish.

The evidence in the record supports desegregation 
as a remedy for Chicanos. The testimony of Dr. James 
Coleman, author of Equality of Educational Oppor­
tunity, found that both Chicanos and blacks did better



22

in a school with students of diverse socio-economic 
backgrounds. (App. 1534a).

Amicus strongly supports the position of Petitioners 
that the trial court should have ordered system-wide 
desegregation. Excluding two race inferior schools 
from relief is simply not a decision grounded on the 
reality of Denver. Chieanos and blacks need cross- 
cultural interaction with Anglos, the dominant com­
munity in Denver. Maintaining minority schools con­
tinues the stigma attached to the schools. Teachers 
will continue to want to escape, physical facilities will 
remain inferior and peer group high-achievers will 
remain absent from these schools. Placing two 
economically and educationally disadvantaged groups 
together does not satisfy the policy underlying de­
segregated education. Professor Coleman found that 
a school population comprised of two disadvantaged 
minority groups is ordinarily as inferior as a school 
with one segregated minority, (App. 1538a).

In view of the facts set forth in Section I I  B of 
this brief, Chieanos in the district are themselves 
directly entitled to affirmative desegregation relief. 
However, even if this Court finds that the school 
board has practiced de jure discrimination against 
blacks only, with the result that blacks but not Chi- 
canos are entitled to affirmative relief, neither sound 
policy nor the Fourteenth Amendment would permit 
treating Chieanos as Anglos nor leaving Chieanos 
completely out of the desegregation process.

Treating Anglos as Chieanos will result in continued 
segregation of minorities. Because of the proximity



23

of Cliicaiio and Negro neighborhoods in Northeast 
Denver it will be poor Negros and Chicanos. who. are 
integrated together. Of course, none of the benefits 
of desegregation will accrue. The effect of such a 
decision will be to maintain all Anglo schools.30

The consequences of considering Chicanos as Anglo 
can be seen in the Houston desegregation litigation, 
Ross v. Eckels, 434 F.2d 1140, 1148 (5th Cir. 1970). 
That Court ordered 14 elementary schools paired on 
a black-white basis. Chicanos were considered white. 
The result of these pairings was that 13 of the 14 
schools were over 80% minority (see Appellant's 
brief, Ross, Rodriguez, U.S. v. Eckels, U.S. Court of 
Appeals, No. 71-2357, appeal pending from denial of 
intervention to Chieano plaintiffs).

Recognizing that Chicanos are an identifiable group 
for equal protection purposes, but leaving them out 
of a black-Anglo desegregation plan results in differ­
ent problems. There is the continuing stigma attached 
to Chicanos of going to isolated second class schools. 
In addition, the benefits accruing to the black, Anglo 
and Chicane children from the mutual understanding 
engendered by cross-cultural interaction would be lost.

Isolating Chicanos from blacks and Anglos also 
raises serious equal protection questions. No one could 
dispute that if a school board moving on its own ini­
tiative to end a supposedly de facto segregation situ­
ation were to desegregate blacks and Anglos to the

S0Green v. County School Board of New Kent County, 391 
U.S. 470 (1968) prescribed a realistic approach to desegregation, 
an approach that actually works.



24

exclusion of the Chicanos, it would violate the mandate 
of equality required by the Fourteenth Amendment. 
The school board would be treating a discreet, iden­
tifiable group differently without any compelling rea­
sons for doing so-.31 It would be ironic if the courts, 
under the guise of remedying discrimination against 
one minority could permissibly discriminate against 
another. And the courts are not of course immune 
from the requirements of the equal protection clause. 
New York Times v. Sullivan, 376 U.S. 254 (1964); 
Cantwell v. Conn., 310 U.S. 296 (1940); cf. Shelley v. 
Kraemer, 334 U.S. 1 (1948).

This Court’s resolution of desegregation issues in 
a multicultural school district is crucial. Situations 
similar to Denver exist; throughout the Southwest. 
Attorneys for Amicus are counsel in cases from 
Austin, Houston and Dallas, Texas.32 Other pending 
litigation involves California cities such as Los 
Angeles and San Francisco.33 Equal educational op­
portunity in America’s cities requires desegregation

81Distinetions based on. race and ethnicity are the archtypical 
classifications subject to the strict equal protection standard. 
McLaughlin v. Florida, 379 U.S. 184, 192 (1963). Loving v. Vir­
ginia, 388 U.S. 1, 9 (1967). See McDonald v. Board of Election 
Comm’rs. 394 U.S. 802, 807 (1969).

“And a careful examination on our part is especially war­
ranted where lines are drawn on the basis of wealth or race, 
two factors which independently render a classification 
highly suspect and thereby demand a more exacting judicial 
scrutiny. ”

32Austin, U.S. v. Texas Education Agency, supra, Houston, 
Boss, Rodriguez U.S. v. Eckels, supra, Dallas, Tasby v. Estes, 
supra.

83Crawford v. Los Angeles Unified School District, Superior 
Court of Los Angeles, California, No. 822854; and Johnson v. 
San Francisco Unified School District, U.S. District Court for the 
Northern District of California, No. C-70 1331 SAW (1971).



25

plans which realistically take account of their ethnic­
ally diverse character.

E. The Trial Court Correctly Ordered a Program For Equali­
zation of Educational Opportunities

Both apart from and ancillary to the issue of de­
segregation, this Court should reinstate the District 
Court’s order requiring the equalization of school 
facilities in which racial and ethnic minorities are 
concentrated. The record is clear that these schools 
are inferior to the Anglo schools, and this inequality 
is attributable only to action by the defendant district. 
As the Fifth Circuit noted in U.S. v. Jefferson Go., 
380 F.2d 385, 393-4 (5th Cir. 1967), the equalization 
of school facilities is an essential precondition to 
effective: desegregation. But if this Court should hold 
that Chicano schools need not be desegregated, equal­
ization of schools becomes all the more crucial— 
indeed, it then becomes the only hope for the district’s 
Chicano children to receive a decent education.

The District Court approved a program which con­
tains at least the following:

“1. Integration of teachers and administrative 
staff;

2. Encouragement and incentive to place skilled 
and experienced teachers and administrators 
in the core of city schools;

3. Use of teacher aides and para-professionals;
4. Human relations training for all School Dis­

trict employees;
5. In-service training on both district-wide and 

individual school bases;



26

6. Extended school years;
7. Programs under Senate Bill 174;
8. Early childhood programs such as Head Start 

and Follow Through;
9. Classes in Negro and Hispano culture and his­

tory; and
10. Spanish language training.” (313 F.Supp. at 

99.)

Spanish language training is crucial to development 
of a Spanish speaking child. If the language and 
culture that he brings to the school are rejected, his 
self-esteem and subsequent ability to succeed in school 
are adversely affected.34 The use of teacher aides and 
para-professionals is of great benefit in implemen­
tation of these Spanish language programs.

The Court of Appeals reversed the District Court’s 
equalization order in reliance on a resolution of the 
defendant board (445 F.2d at 1010). This was error. 
The constitutional rights of minority students should 
not depend on the good faith, of a school board proven 
to have discriminated. Furthermore, the order of the 
District Court, is much more particular than the reso­
lution and provides specifically for programs for 
Chicanos. Finally, the school board’s plan is not, really 
a plan at all because it is dependent on the vagaries, 
of the finances of the school district.

34Congress has recognized the need for these types of language 
programs. Bilingual Education Act, 20 U.S.C. Section 880.



27

CONCLUSION

Wherefore, Amicus Curiae prays that this Court 
grant the relief requested by the Petitioners and 
reverse the judgment of the Court of Appeals insofar 
as it reverses the judgment of the District Court and 
remand the, case to the District Court with instruc­
tions, that, it institute a comprehensive desegregation 
plan for the Denver school system.

Dated, May 4, 1972.
Respectfully submitted,

M ario  Gr. O bled o ,

M ic h a e l  M e x d e l s o n ,
A l a n  E x elr o d ,

Attorneys for Amicus Curiae.