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chapter five Judicial Management of Triethnic Integration new federal civil rights statutes of the 1960s authorized federal oversight of state policies on a scale not seen since the Reconstruction era. The U.S. Supreme Court supported these laws in a series of landmark opinions.1 Advocates of federal judicial protection of minorities feared that President Nixon’s 1969 appointment of Warren Burger to replace Earl Warren as chief justice heralded the cessation of federal intervention in local affairs. But no “constitutional counterrevolution ” followed.2 In the field of public school desegregation, the Burger court could surpass the Warren court’s boldness. Under Warren the court waited more than a dozen years to abandon its failed policy of allowing school desegregation to proceed with “all deliberate speed.”3 Finally, in the 1968 decision in Green v. County School Board of New Kent County, the justices declared that a school board had the “burden . . . to come forward with a plan that promises realistically to work, and promises realistically to work now.”4 The Green decision forcefully condemned delay, but it nevertheless once again left the formulation of desegregation policy in the hands of local officials who had been subverting Brown for years. The court took the next step in the first school desegregation decision in which Burger participated. In October 1969, in a short, sharply worded per curiam opinion in Alexander v. Holmes County Board of Education , the justices authorized federal district judges to employ their broad equitable powers to force school boards to begin operating desegregated “unitary” systems “immediately.”5 Despite its subsequent resuscitation of abstention doctrine in 1973’s Younger v. Harris, the Burger-led court did not intend to slam shut all gates the Warren court had opened.6 Although the Supreme Court reinforced the authority of federal district judges to develop remedies, these decisions did not resolve the long-standing desegregation controversy.7 Various barriers to equal educational opportunity remained in place. They included the routine assignment of students to “neighborhood” schools where segregation had emerged from, and was perpetuated by, segregated 189 190 chapter five residential patterns. Another barrier was the restriction to African Americans of the equitable remedies made available by the original Brown decision. Combined, these obstacles kept Mexican Americans in segregated schools. The federal courts did not consider them “identifiable” minorities who were subject to the equal protection clause of the Fourteenth Amendment, a result of the Mexican Americans’ long reliance on the so-called “other white” legal strategy. In Texas “Jim Crow” laws, Mexican Americans were members of the “white” race. Mexican Americans had maintained that they were not subject to the same statutory segregation as African Americans. Therefore, the discrimination they experienced in the schools and other public realms denied them due process rather than equal protection. Federal judges had accepted these arguments and had enjoined various forms of segregation.8 Mexican Americans maintained their hard-won “white” status as late as mid1966 , when James DeAnda, the longtime legal advisor to the civil rights organization American G.I. Forum (agif), resumed school desegregation litigation after nearly a decade’s hiatus.9 In the new suit he sought to enjoin “ability tracking” in the Odem Independent School District (isd) near Corpus Christi. Officials there assigned students to classes according to past performance, measured aptitude, or a teacher’s estimation of student potential. The district had established two separate “tracks,” one for the college-bound and another for the “terminal” high school students. Students of Mexican descent dominated the latter category. In his 1966 complaint DeAnda relied on the precedents he had helped establish in the 1950s. One of these was his own successful 1957 lawsuit to enjoin the linguistic segregation of Mexican American elementary students in the nearby Driscoll Consolidated Independent School District (cisd). DeAnda had argued in that case that the Driscoll cisd officials segregated Mexican Americans on the basis of poorly administered tests purporting to assess English language skills, or without administering any tests at all. He had convinced U.S. District Judge James Allred that this was an arbitrary system that denied the due process guaranteed in the Fourteenth Amendment.10 Now, ten years after his victory over the Driscoll cisd, DeAnda faced essentially the same discrimination in different guise at the Odem isd. He fought this familiar enemy with well-worn weapons. In June 1967, when DeAnda wrote the legal brief in support of his motion for summary judgment, his argument was stalled at the...

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