s. Hernandez v. Texas

Charles R. Calleros 1

"Murder is the offense, with punishment assessed at life imprison­ment in the penitentiary."2 So began the opinion of the Texas Court of Criminal Appeals affirming the conviction of Pete Hernandez, despite evidence showing that county jury commissioners had sys­tematically excluded Mexican-Americans from juries, including the grand jury that indicted Hernandez and the petit jury that tried him.3 Two years later, and two weeks before the landmark decision of Brown v. Board of Education,4 the Supreme Court reversed Her­nandez's conviction, finding that the systematic exclusion of Mexican-Americans from juries violated the Equal Protection Clause of the Fourteenth Amendment.5

The pending decision in Brown overshadowed Hernandez even as the Court issued its decision in Hernandez. 6 Indeed, Hernandez merits study for its nuanced approach to classifications protected by the Equal Protection Clause, an approach that arguably has been overlooked as Hernandez receded into the shadows cast by Brown.

I. The State Litigation in Hernandez v. Texas

On August 4, 1951, Pete Hernandez shot and killed Joe Espinosa in a tavern in the town of Edna, within Jackson County, Texas. Hernan­dez was represented by experienced attorneys John Herrera, Gus­tavo ("Gus") Garcia, and Carlos Cadena, along with Herrera's associate, James de Anda, a recent law school graduate. These attor­neys revived an argument that Herrera and de Anda had unsuccess­fully pursued in a previous case in Fort Bend County,7 that jury commissioners had systematically excluded persons of Mexican descent from grand juries and trial juries, in violation of due process and equal protection. 8 Hernandez's attorneys relied on the rule of Norris v. State of Alabama, 9 which held that proof of absence of Mrican-Americans on juries in criminal cases over many years established a prima facie case of racial discrimination in composi­tion of juries, raising a rebuttable presumption of unconstitutional

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discrimination. 10 In the prosecution of Hernandez, the trial court twice denied defense motions based on this theory. Hernandez was convicted of murder and sentenced to life in prison.11

The Texas Court of Criminal Appeals affirmed the conviction. It declined to apply the rule of Norris until the U.S. Supreme Court extended it beyond the narrow facts of Norris. Specifically, the Texas court interpreted the equal protection principles of Norris to apply only to a two-class paradigm of Caucasian and Mrican­American classes. Drawing on Texas precedent, the Texas appellate court reasoned that persons of Mexican "nationality" were mem­bers of the Caucasian or "white" race and thus shared the race of the all-white grand jury that indicted Hernandez and the all-white trial jury that found him guilty. Because the Texas court refused to extend the Norris rule to national origin discrimination, and because it declined to find racial discrimination in the exclusion of Mexican­Americans from white juries, it characterized Herrera's claim as an attempt by a subset of the Caucasian race to carve out special priv­ileges that would not be enjoyed by other members of that race.12

Herrera's attorneys filed a petition for certiorari with the U.S. Supreme Court, which the Court granted on October 12, 1953.13

II. Herrera's Legal Team in the U.S. Supreme Court

James de Anda did not attend the arguments in the U.S. Supreme Court, 14 but he played a critical role in Herrera's success in that forum: De Anda had collected the data that demonstrated the absence of Mexican-Americans on grand juries and trial juries in Jackson County for more than two decades.15

The primary drafter of the Brief for Petitioner in the Supreme Court was Carlos Cadena,16 formerly a law partner with Gus Garcia and later a Professor at St. Mary's School of Law in San Antonio. Garcia described Cadena as "[s]hy, reserved, and retiring," but "the best brain of my generation."17

Garcia was anything but shy and retiring. Texas Congressman Maury Maverick described Garcia as "forceful and dramatic" and opined that Garcia likely "would have made just as great a flamenco dancer or bullfighter as he has a triallawyer." 18 Described by Pro­fessor Olivas as "feisty" and a "brilliant orator," Garcia shared the oral argument with Cadena but left the more lasting impression.19

Although the arguments were not recorded at that date, according to co-counsel Herrera, the Court granted Garcia substantial extra time to continue his argument.20

Herrera sat at counsel's table, assisting the orators by managing documents. 21 According to Garcia, Herrera "kept our heads level as we were bombarded by questions."22

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Carlos Cadena

III. The Opinion of the Supreme Court: Defining a Protected Class

The U.S. Supreme Court reversed Hernandez's conviction, finding that his legal team had met its burden of showing a violation of equal protection in jury composition under the Norris standard.23

Before reviewing the evidence of exclusion, however, the Court nec­essarily addressed the Texas courts' position that Mexican-Ameri­cans did not define a class warranting equal protection.24

. The role of race in Hernandez is illuminating. Although this case was decided just two weeks before Brown, the members of the pro­tected class in Hernandez were not full allies with African-Ameri­cans in their quest for equality. Many Mexican-Americans in Texas encouraged the legal view that they belonged to the same race as the white persons who discriminated against them, because they feared that their categorization as non-white would relegate them to the same low social status accorded to African-Americans in their segregated communities. 25

For years, this strategy bore a bitter fruit: Mexican-Americans still suffered pervasive private discrimination at the hands of the white majority, yet Texas courts condoned their exclusion from juries on the ground that they shared the Caucasian race of the all-white jurors.26 These two realities collided vividly when Hernan­dez's legal team stumbled upon a bilingual sign at the courthouse basement in Edna, Texas, signifying the bathroom for non-white men with the words "Colored Only" and "Hombres Aqui,'' 27 a fact noted by the Supreme Court when it reviewed evidence of dis-

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Despite the futility of this attempt to escape the same kinds of private discrimination aimed at African-Americans, Petitioner's Brief in Hernandez adhered to the approach of classifying Mexican­Americans as members of the Caucasian race, as did the Texas courts: Although the brief referred somewhat ambiguously to the class of "persons of Mexican descent," it grounded its equal protection claim at least partly on "national origin."29

The Supreme Court soundly rejected the Texas courts' binary approach to equal protection: "The Fourteenth Amendment is not directed solely against discrimination due to a 'two-class theory'­that is, based upon differences between 'white' and Negro."30

In light of largely unrebutted evidence of discrimination against, and segregation of, Mexican-Americans in Jackson County, the Court concluded that the "petitioner succeeded in his proof" that "persons of Mexican descent constitute a separate class in Jackson County, distinct from 'whites."'31

As you read the opinion, try to identify the "separate class" or classes the Supreme Court finds persons of "Mexican descent" to comprise. One easy answer lies in the final paragraph's reference to Hernandez's constitutional right to "juries selected from among all qualified persons regardless of national origin,"32 a reference pre­sumably to "where a person was born, or more broadly the country from which his or her ancestors came."33 Distinguishing Mexican­Americans on the basis of national origin comported with the strat­egy of Mexican-Americans in Texas of identifying themselves as part of the Caucasian race and of reaching for the rights and social status enjoyed by the white population.34

Unfortunately, this strategy represented a lack of solidarity with African-Americans, with whom Mexican-Americans shared "the bottom rung of the ladder" in the era of Hernandez.35 More­over, a class based on national origin could not comfortably encompass the U.S.-born descendants of long-time Latino Texas residents; these descendants shared U.S. national origin with the exclusively white jurors but were excluded from juries because of Spanish surnames and likely suffered other forms of dis crimina­tion based on their recognizable names, skin color, and facial features.

Consequently, it is significant that the Supreme Court's opinion in Hernandez did not limit its equal protection analysis to national origin discrimination. Notice that the final paragraph refers to free­dom from discrimination based on "national origin or descent."36 Of course, much of the opinion refers to persons of "Mexican descent," perhaps reflecting the Court's adoption of that term from the Peti­tioner's Brief, and perhaps suggesting that the final paragraph of the Court's opinion is simply equating "descent" with national origin, as encoura2:ed bv Petitioner's Brief. 37

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Earlier in the opinion, however, notice that the Court replaces "descent" with "ancestry": "The exclusion of otherwise eligible per­sons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amend­ment. "38 If "descent" in the sense of "ancestry" is distinct from national origin, what is its intended meaning?

Thirteen years after Hernandez, in yet another case dealing with Texas jury composition, the Supreme Court seemed to suggest in passing that Mexican-Americans are indeed properly characterized as defining a racial class: "[l]t is no longer open to dispute that Mexican­Americans are a clearly identifiable class. See, e.g., Hernandez v. Texas, supra . ... [T]he selection procedure is not racially neutral with respect to Mexican-Americans; ... "39

More thoroughly reasoned support for this position is provided by the Supreme Court's interpretation in 1987 of a civil rights statute from the Reconstruction era, in St. Francis College v. Al-Khazraji,40

discussed in Section IV.A below. Although a Supreme Court with different composition decided St. Francis College more than 30 years after Hernandez, it potentially sheds light on the arguments and analysis in Hernandez. A more nuanced and contextual analysis of protected classes is found within the Hernandez opinion itself, as discussed in Section N.B.

IV. Conceptions of Race

A. St. Francis College v. AI-Khazraji

Title 42 U.S.C. §1981 has its roots in both the Civil Rights Act of 1866 and the Voting Rights Act of 1870.41 It provides that all persons shall

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have equal rights to contract "as is enjoyed by white citizens,"42 a provision interpreted to prohibit discrimination in contracting based on race, regardless of which race was favored or disfavored in a refusal to enter into a contract.43 As late as 1987, however, ques­tions remained about the definition of race under these statutes.

In St. Francis College v. Al-Khazraji, the defendant relied on an argument closely analogous to the position taken by the Texas Court of Criminal Appeals in Hernandez. Al-Kazraji, a college professor, alleged that his college had discriminatorily denied him tenure because of his Arab ancestry.44 In response, the employer invoked §1981's requirement of racial discrimination and asserted that the plaintiff was a member of the Caucasian race. Because the decision­makers were Caucasian as well, and because the decision-makers held no animus toward members of their own race, the employer argued that the alleged discrimination based on Arab ancestry did not constitute racial discrimination, as required under §1981.45

The employer's position received support from twentieth­century scientific classification of all ethnic groups into just three races: Caucasoid, Negroid, and Mongoloid.46 Under these broad classifications of race Arabs and Europeans were members of the same Caucasian race, allowing the employer to argue that Caucasian decision-makers did not refuse to promote a Caucasian faculty member because of their shared Caucasian race.41 Alterna­tively, the employer could argue that alleged discrimination in favor of an Anglo-American faculty member and against an Arab­American faculty member would not state a claim of discrimination based on race, because both the favored and disfavored parties are members of the same race.

The Supreme Court rejected this approach by interpreting the 1866 statute in light of congressional intent at the time of enact­ment, rather than in light of twentieth-century scientific classifica­tions. 48 Legislative history and other historical sources showed that the kind of discrimination addressed by that Congress-when it statutorily distinguished "white citizens" from other persons-was discrimination on the basis of narrow lines of "ancestry or ethnic characteristics,"49 such as an Anglo-American discriminating against a claimant because of his or her German, Arab,50 or Jewish 51

ancestry. Having earlier interpreted §198 to require "race" discrimina­

tion, the Court in St. Francis College then roughly equated race with narrowly defined ethnic blood lines, thus multiplying the number of claims under §1981. Discrimination against a person with mixed Spanish and Indian blood from a region in Mexico, and in favor of a person with a mix of German and Irish ancestry, would violate §1981, if the discrimination was based on the ethnic lines of ancestrv. regardless of whether the victim and beneficiary of

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the discrimination would both be considered as Caucasian, broadly defined. 52

Is it possible that references in the Hernandez opinion to "ances­try" and "descent" constitute an early parallel to the analysis of race in St. Francis College? If so, Hernandez could be interpreted as find­ing discrimination on the basis of race, narrowly defined, as well as national origin. To the extent that original intent is relevant to the constitutional question in Hernandez, as it was to the statutory issue in St. Francis College, the same concerns about ethnic discrimina­tion spurring the 1886 statute would presumably have been on congressional minds when Congress proposed the Fourteenth Amendment, and its Equal Protection Clause, ratified in 1868. Viewed in this light, Hernandez-albeit in veiled language-arguably sup­ports a conclusion that persons of "Mexican descent" make up a distinct race, in the sense of ethnic ancestry, apart from the Anglo­American "race" of the white jurors. 53

B. Using Social Context to Define Protected Classes

Regardless of whether one divides racial classifications into a few broad categories or many narrower ones, a more fundamental question arises: Is it futile to search for biological classifications of race? Moreover, even if one can identify biological markers for ethnic blood lines, would they correspond to surnames, physical appear­ance, or other triggers for discrimination at the hands of others?

Many argue that race and ethnicity are best viewed as social con­structs.54 For purposes of applying an antidiscrimination principle, perhaps the critical factor is whether members of a disfavored group share characteristics that define them as a distinct class in a com­munity and that trigger adverse treatment by others within the broader community. Depending on local context, those character­istics might include such things as physical appearance, language, cultural traditions, national or regional origins, and surnames asso­ciated with a region or ethnicity. 55

If a combination of characteristics "bind a people together as a matter of external perception and internal self-conception," then they may warrant identification as a protected class under antidis­crimination principles.56 "Race" could then simply operate as a label that connects the classification to an antidiscrimination law, such as §1981. The discrimination along ancestral lines that ani­mated Congress to enact the original version of §1981, for example, might in some cases more closely mirror actual discriminatory behavior-both then and now-than the broader scientific classifi­cations advanced by the defendant in St. Francis College.57

As you read the Hernandez opinion, consider the extent to which the Court advances such a contextual approach to classes protected

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by the Equal Protection Clause. Take some time to interpret, for example, the following excerpts of the opinion:

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

The petitioner's initial burden in substantiating his charge of group discrimination was to prove that persons of Mexican descent constitute a separate class in Jackson County, distinct from "whites." One method by which this may be demonstrated is by showing the attitude of the community. Here the testimony of responsible officials and citizens contained the admission that residents of the community distinguished between "white" and "Mexican." ... 58

Unlike §1981, the Equal Protection Clause is not limited to addressing discrimination on the basis of race, so the Court in Hernandez had no need to link the class of persons of Mexican descent to the label "race." It was sufficient that they defined a "group[] which need[s] the same protection" as do groups that

. can more easily show discrimination on the basis of race. 59

Regardless of whether the Court's reference to "descent" and "ancestry" was intended to refer to a racial classification, does the Court in Hernandez embrace a contextual approach, one that vif\ws protected classifications at least partly as a factual matter of loc~y defined social constructs? In Hernandez, what evidence of segregation and discrimination persuaded the Court to find that persons of Mexican descent constituted a "separate class in Jackson C d• • IT I hit "'? ounty, 1stmct __ om w_ es .

What implications would such an approach have for defining protected classes in other cases? For issues such as affirmative action? To the extent that the overshadowing of Hernandez by Brown v. Board of Education has caused the approaches suggested in Hernandez to indeed fade into the shadows, is equal protection analysis poorer for the loss?

V. The Legacy of Hernandez

Hernandez is often cited in cases applying Norris's rule of exclusion in jury composition. 60 In one of those cases, Castaneda v. Partida, the Supreme Court relied on Hernandez to easily find that Mexican­Americans, and specifically those with Spanish surnames, consti­tuted a protected class.61 The Court, however, did not further develop its view in Hernandez that a protected class can be defined

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partly by the extent to which others single out members of the group for adverse treatment. In Castaneda, the Court noted that "statistics introduced by respondent from the 1970 census illustrate disadvan­tages to which the group has been subject";62 however, this passage apparently is introducing the Court's analysis of discrimination in jury selection rather than explaining its identification of Mexican­Americans as a protected class. 63

In Tijerina v. Henry, 64 a case outside the context of jury compo­sition, the Supreme Court passed on the opportunity to apply and extend the Hernandez approach to defining a legally significant class. In Tijerina, a three-judge panel of the federal district court dismissed a class action in a suit seeking equal educational rights, on the ground that a class was not adequately defined by ethnicity, Spanish surnames, and use of Spanish as a primary or maternallan­guage.65 The Supreme Court dismissed the appeal without opin­ion,66 over a spirited dissent by Justice Douglas, who noted that:

[T]hose who discriminate against members of this and other minority groups have little difficulty in isolating the objects of their discrim­ination. And it is precisely this discrimination, as alleged by appel­lants in their complaint, that presents the "questions of law or fact common to the class."67

..A..fter reviewing the recognition of a protected class in Hernandez on the basis of the discriminatory treatment of Mexican-Americans in Jackson County,68 Justice Douglas applied the same approach to certification of a class for class action purposes:

What the Court said in Hernandez is, I think, pertinent to the question of establishing the existence of a proper class for a class action under Rule 23. There can be no dispute that in many parts of the Southwestern United States persons of Indian and Mexican or Spanish descent are, as a class, subject to various forms of discrim­ination. Appellants, as members of that class, brought this action to prevent the continuance of alleged discriminatory actions taken against the class. I do not see how it can be seriously contended that this suit is not a proper class action.69

That Justice Douglas stood alone in Tijerina is perhaps emblem­atic of the extent to which Hernandez has been limited to its context of jury composition and has failed to emerge from the shadows of Brown v. Board of Education. 70

Nonetheless, Hernandez represents an important legal milestone for Mexican-Americans, in the recognition of their status as a pro­tected class, and for the maturation of the Latino bar as well. As summed up eloquently by Professor Michael Olivas,

[I]n a brief and shining moment in 1954, Mexican-American lawyers prevailed in a system that accorded their community no legal status

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and no respect. Through sheer tenacity, brilliance, and some luck, they showed it was possible to tilt against windmills and slay the dragon.71

Two weeks later, the Supreme Court decided Brown v. Board of Education, the culmination of years of litigation in several school desegregation cases begun by African-American attorney Charles Houston and completed by Thurgood Marshall. 72 Although Hernan­dez stood in the shadow of Brown, their dual arrival cast a beacon of hope for those denied equal rights under the law.

Endnotes

1. Professor of Law, Sandra Day O'Connor College of Law at Arizona State University. The author thanks second-year law student Amelia Valenzuela and Assistant Librarian David Gay for their invaluable research assistance on this topic.

2. Hernandez v. State, 251 S.W.2d 531, 532 (Tex. Crim .. App. 1952). 3. Hernandez v. Texas, 347 U.S. 475, 476, 480-482 (1954) (summarizing trial motion,

and accepting the proof offered by Hernandez's attorneys about systematic exclusion); Michael A. Olivas, Hernandez v. Texas: A Litigation History, reprinted in "Colored Men" and "Hombres Aqut'": Hernandez v. Texas and the Emergence of Mexican-American Lawyer­ing 209, 213, 215 (Michael A. Olivas ed., Arte Publico Press 2006) (hereafter Colored Men) (Hernandez was indicted and tried by all-white juries).

4. 347 U.S. 483 (1954). 5. Hernandez v. Texas, 347 U.S. 475 (1954). 6. Arthur Krock, In the Nation, No Clue to the Separate Schools Case, N.Y. Times 32

(May 6, 1954) (analysis of Hernandez mostly in attempt to predict outcome in pending decision in Brown).

7. Olivas, supra note 3, at 211-213 (discussing case of Sanchez v. Texas, 243 S.W.2d 700 (1951), as well as the crime and the early stages of the Hernandez prosecution).

8. Hernandez, 347 U.S. at 476-477 (summarizing trial motions of Hernandez's defense team).

9. 294 U.S. 587 (1935); see also Castaneda v. Partida, 430 U.S. 482, 501 (in applying Norris test, finding that evidence established a "prima facie case of discrimination in grand jury selection" and finding that "the State failed to rebut the presumption of purposeful dis­crimination"). "While the earlier cases involved absolute exclusion of an identifiable grbup, later cases established the principle that substantial underrepresentation of the group con­stitutes a constitutional violation as well, if it results from purposeful discrimination" as required under Washington v. Davis, 426 U.S. 229, 239 (1976). Castaneda, 439 U.S. at 493.

1 0. !d. at 591-599. 11. Hernandez, 347 U.S. at 476-477. 12. Hernandez v. State, 251 S.W.2d 531, 534-535 (Tex. Crim. App. 1952). 13. Hernandez v. State of Texas, 346 U.S. 811 (1953). 14. Olivas, supra note 3, at 217-218 ("as the junior partner, de Anda remained in Texas

to mind the store and continue the trials that were still ongoing''). 15. A Cotton Picker Finds Justice! The Saga of the Hernandez Case (hereafter A Cotton

Picker Finds Justice!) (Ruben Munguia ed.), reprinted in Colored Men, supra note 3, App. VIII, at 361 & n.1, 362 (in Gustavo C. Garcia, An Informal Report to the People).

16. Lupe S. Salinas, Gus Garcia and Thurgood Marshall: Two Legal Giants FighUng for Justice, 28 T. Marshall L. Rev. 145, 169 (2002-2003).

17. See supra notes 3-5 and accompanying text. 18. A Cotton Picker Rnds Justice! supra note 15, at 359 (in Maury Maverick, Foreword). 19. Olivas, supra note 3, at 216, 218. 20. !d. at 218 (citing to letter to the editor written by John Herrera); Salinas, supra note

16, at 170.

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21. A Cotton Picker Finds Justice! supra note 15, at 364 (in Gustavo C. Garcia, An Informal Report to the People).

22. !d. at 365. 23. Hernandez v. Texas, 347 U.S. 475, 480-482 (1954). 24. !d. at 478-480. 25. lan F. Haney Lopez, Retaining Race: LatCrit Theory and Mexican American Identity

in Hernandez v. Texas, 2 Harv. Latino L. Rev. 279, 287 & n.29 (1997); Clare Sheridan, "Another White Race'~· Mexican Americans and the Paradox of Whiteness in Jury Selection, 21 Law & Hist. Rev. 109, 127, 135-138 (2003); A Cotton Picker Finds Justice! supra note 15, at 371 (in Carlos C. Cadena, A Thumbnail Sketch) (assuring Mexican-Americans that the Court in Hernandez found discrimination on the basis of national origin and did not classify them as "non-white").

26. Lopez, supra note 25, at 293-294; Sheridan, supra note 25, at 141-142. 27. Olivas, supra note 3, at 216 & n.42. 28. Hernandez, 347 U.S. at 479-480. 29. See Brief for the Petitioner, Hernandez v. Texas, 347 U.S. 475 (1954) (No. 406) at

28 (stating in the Conclusion that "[a]ll courts which have considered the question have held that the Fourteenth Amendment forbids discrimination because of national origin"); see also id. at 6 n.1 (questioning the Texas appellate court's use of the term Mexican "nationality," which suggests Mexican citizenship, and noting that the brief generally refers to "persons of Mexican descent").

30. Hernandez, 347 U.S. at 478. 31. !d. at 479-480; see also St Francis College v. AI-Khazraji, 481 U.S. 604, 613

(1987) (distinguishing "place or nation of ... origin" from race). 32. !d. at 482 (emphasis added). 33. Espinoza v. Farah Mfg. Co., 414 U.S. 816, 818 (1973). 34. See supra note 25. 35. Olivas, supra note 3 at 21 0. 36. Hernandez, 347 U.S. at 482 (emphasis added). 37. See supra note 29 (Petitioner's Brief uses the term "persons of Mexican descent"

while arguing that the Equal Protection Clause forbids national origin discrimination). 38. Hernandez, 347 U.S. at 479. 39. Castaneda v. Partida, 430 U.S. 482, 495 (1977) (emphasis added). 40. 481 u.s. 604 (1987). 41. St. Francis College, 481 U.S. at 612. 42. Section 1981, divided into three subsections after amendment in the Civil Rights Act

of 1991, provides in part:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ....

42 U.S. C. § 1981 (a) (2006). 43. St Francis College, 481 U.S. at 609 ("Although § 1981 does not itself use the word

'race,' the Court has construed the section to forbid all'racial' discrimination in the making of private as well as public contracts."); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 285-296 (1976) (§ 1981 applies to discrimination against white persons, as well as against non-white persons}.

44. St. Francis, 481 U.S. at 609. 45. !d. at 609-61 0. Of course, it is possible for someone to discriminate against mem­

bers of the same race for various reasons. See, e.g., Castaneda v. Partida, 430 U.S. 482, 503 (1977) (Marshall, J., concurring) (noting that members of disadvantaged groups may sometimes try to disassociate themselves with those groups, even to the point of adopting the majority's negative attitudes towards the minority). In St Francis College, however, AI­Khazraji apparently did not assert that decision-makers held discriminatory animus toward Caucasians generally; he therefore needed to establish his membership in a different race than that of the decision-makers, a race toward which the decision-makers held discrimina­tory animus.

46. St Francis, 481 U.S. at 61 0 & n.4. 47. !d. at 609-610. 48. !d. at 61 0.

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49. !d. at 613. 50. !d. at 612. 51. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987) (interpreting

companion statute, 42 U.S.C. § 1982). 52.- In close cases, the analysis in St. Francis College does present a challenge in dis­

tinguishing between race and national origin. St Francis College, 481 U.S. at 614 (Brennan, J., concurring). National origin refers most clearly to birthplace, whereas race-as defined by St Francis College-relates to ethnic ancestry, which itself may be associated with a specific geographic area that is encompassed within or overlaps the borders of a nation-state. See generally id. In some cases, the distinction is easily made: A person born and raised in Britain of parents with ancestral roots in a region in West Africa has a British national origin but a race associated with peoples indigenous to West Africa. In contrast, AI-Khazraji, a U.S. citizen of Arab ancestry born in Iraq, might present a more difficult factual question. If invid­ious discrimination did occur, would the facts clearly show whether the discrimination was based on AI-Khazraji's Arab ancestry, actionable under § 1981, or based on his birthplace within the nation of Iraq, actionable under a modern civil rights statute, but not under § 1981? See St Francis College, 481 U.S. at 606 (explaining that claimant brought several claims, including one based on national origin, under Title VII of the Civil Rights Act of 1964, but the Title VII claims were barred under the limitations periods).

53. See note 39 and accompanying text. But cf. Sheridan, supra note 25, at 131 (con­cluding that "[t]he Supreme Court, however, declined to rule on whether Mexican Americans constituted a race").

54. See, e.g., St. Francis College, 481 U.S. at 61 0 n.4 (citing to several scientific pub­lications concluding that racial classifications are for the most part sociopolitical, rather than biological, in nature; Lopez, supra note 25, at 281, 288-289 (race is not biological but is a social construct based on group member's self-conception and on perception of the group by others, and referring to Professor Juan Perera's application of a similar definition to ethnicity).

55. See generally Lopez, supra note 25, at 281 (setting forth similar list of characteristics).

56. !d. 57. See supra Section IVA 58. Hernandez v. Texas, 347 U.S. 475, 478-479 (1954). 59. /d. at 478. 60. See, e.g., Castaneda v. Partida, 430 U.S. 482, 492, 495 (1977); id. at 502 n.1

(Marshall, J., concurring) (citing to other cases, those of which decided after 1954 all cite to Hernandez).

61. /d. at 495; see supra note 39 and accompanying text. 62. Castaneda, 439 U.S. at 495. 63. !d. at 495-496 (using the 1970 census data to establish exclusion from jury service). 64. 398 u.s. 922. 65. Tijerina v. Henry, 48 F.R.D. 274 (D.N.M. 1969). 66. Tijerina v. Henry, 398 U.S. 922 (1970). 67. !d. at 923-924 (Douglas, J., concurring). 68. !d. at 924. 69. !d. at 924-925. 70. See supra notes 3-5 and accompanying text. 71. Olivas, supra note 3, at 222. 72. See Salinas, supra note 16, at 145-147, 153; The Road to Brown (Calif. Newsreel

1990) (documentary film about African-American attorney Charles Houston's litigation of cases leading to Brown).

377