# Mendez v. Westminster/Concurrence Denman

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* Linked cases: Hernandez v. Texas Brown v. Board of Education
DENMAN, Circuit Judge (concurring).
I concur in what is said in the court's opinion but cannot agree with the omission of the consideration of Lopez v. Seccombe, so widely discussed in the profession. I am also of the opinion that we should not place a primary reliance upon Home Telephone & Telegraph Co. v. Los Angeles, which in particulars relevant here is overruled by the Snowden and Screws cases. The precedent of the recent decision in *782 Snowden v. Hughes, infra, states the law as it now is, with requirements for violation of the Fourteenth Amendment not mentioned in the court's opinion.

## 1

Lopez v. Seccombe, Mayor of the City of San Bernardino, California, D.C., S.D.Cal., 71 F. Supp. 769.
What our decision here does is to follow the precedent of Judge Yankwich's decision in the Lopez case. It is not only in Orange County that public officers are guilty of such perversions of the "privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." In an adjoining county a similar discrimination was made not only against the descendants of Mexican nationals but of descendants, adult and infant, of all nationals of Latin countries.
San Bernardino established a public park and recreational ground with an area containing a swimming pool and bath house. The mayor, city councilmen, chief of police and park superintendent, all through their agents, barred from their entry into the area all persons of Latin descent. The exclusion was not merely of Mexicans but of all Latins, that is of people from the score or more Latin American Republics and from Italy, Spain and Portugal, as the outstanding character of persons actually excluded makes clear.
The Reverend R. N. Nunez is a Catholic priest of Mexican ancestry. Eugenio Nogueros is from Porto Rico, of Latin ancestry, a college graduate, who is an editor and publisher. Ignacio Lopez another newspaper editor is of Mexican descent a graduate of the University of California, recently the head of the Spanish Department in the Office of Foreign Language, Division of Office of War Information, and the Spanish speaking director of the Office of Coordinator of inter-American affairs at Los Angeles, California. All are citizens of the United States. The two editors were taxpayers contributing to the support of the facilities denied them.
All three sought admission to the park area and its facilities and were excluded therefrom because of their Latin descent. This was not a mere casual error of a minor official at the park. The priest and the two editors and each of them on several occasions protested to these city officials and requested their permission to enter these public facilities but, because of their Latin descent, such permission was denied them.
In the case of Lopez et al. v. Seccombe et al., supra, the priest and the two editors, suing for themselves as American citizens and eight thousand (8,000) other San Bernardino persons of Latin descent, sought an injunction against the mayor, councilmen, chief of police and park superintendent for such discriminatory exclusion. The case was tried by Judge Yankwich who ruled, as in the instant case, that such discriminatory barring of the class of Latin descended people violated the due process and equal protection clause of the Fourteenth Amendment. The facts of the discrimination as to all persons of Latin descent were found, as above stated, and an injunction issued against the eight office holders.
In the San Bernardino case the answer of the officers denied the exclusion of the *783 plaintiffs. In the instant case these Orange County trustees, public officers sworn to uphold the Constitution of the United States and the constitution of the State of California, brazenly proclaim their guilt in their discriminatory violation of the state educational laws. What is overlooked in the court's opinion is the fact that the appellants themselves declare they have violated their oaths of office and, in effect, say, "Well what are you going to do about it?" for their brief states
   "The situation in California as conclusively shown by the record is:
   "1. The legislative department of the State has clearly and expressly prohibited the establishment of separate schools for Mexican pupils.
   "2. The Judicial Department of the State has emphatically declared it to be unlawful to establish separate schools for Mexican pupils (Wysinger v. Crookshank, 82 Cal. 588, 23 P. 54)."
California is a state as large as France and having a population at least a fifth as large as that of the United States when the Fourteenth Amendment was adopted. All the nations of the world have contributed to its people. Were the vicious principle sought to be established in Orange and San Bernardino Counties followed elsewhere, in scores of school districts the adolescent minds of American children would become infected. To the wine producing valleys and hills of northern counties emigrated thousands of Italians whose now third generation descendants well could have their law-breaking school officials segregate the descendants of the north European nationals.
Likewise in the raisin districts of the San Joaquin Valley to which came the thousands of Armenians who have contributed to national prominence such figures as Saroyan and Haig Patigan. So in the coastal town homes of fishermen, largely from the Mediterranean nations, the historic antipathies of Italian, Greek and Dalmatian nationals could be injected and perpetuated in their citizen school children.
Or, to go to the descendants of an ancient Mesopotamian nation, whose facial characteristics still survived in the inspiring beauty of Brandeis and Cardozo the descendants of the nationals of Palestine, among whose people later began our so-called Christian civilization, as well could be segregated and Hitler's anti-semitism have a long start in the country which gave its youth to aid in its destruction.
It is to such school officials, who so violate their oaths of office and openly break both the state and federal laws and who set such an example to the boys and girls, that these adolescents are entrusted to grow up in the American way of life. In this connection it should be noted that Section 19 of the Criminal Code, 18 U.S.C.A. § 51, under which Screws was prosecuted, makes a felony of the same wrongdoing for which the succeeding Section 20, 18 U.S.C.A. § 52, creates the civil remedy here given by this court. As justice Rutledge's opinion at page 119 of 325 U.S., at page 1044 of 65 S.Ct., 89 L. Ed. 1495, 162 A.L.R. 1330, of the Screws case states, they are "twin sections," in which there are "no differences in the basic rights guarded."
It is in accord with the long established precedent of Anglo Saxon judges to call to the attention of the prosecuting authorities facts appearing in litigation before them which may warrant the consideration of an indictment. Following that custom, the attention of the senior judge of the Southern District of California and the foremen of its grand juries is directed to the facts here disclosed.

## 2

As the law is today it is not enough that a state official violates the state or federal law in the manner described in Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 282, 33 S. Ct. 312, 57 L. Ed. 510, to bring him within the due process and equal protection clause of the Fourteenth Amendment. On the facts shown in the opinion of the Supreme Court the City of Los Angeles today would not be held to have violated that Amendment.
In Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397, 401, 88 L. Ed. 497, the Supreme Court determined the boundary line of cases of officials' violations of state law within and without the Fourteenth Amendment. It is not enough that the federal or state law is violated. In addition either the law must be not "fair on its face" or *784 there must be an "intentional or purposeful * * * discriminatory design to favor one individual or class over another" in administering the law.
There, where an Illinois election board, in claimed violation of Illinois law, had failed to certify a citizen as a duly elected nominee for a state office, it was held that he was not denied the equal protection of the Fourteenth Amendment. This was not because he had a remedy under the state law but because that law was not discriminatory on its face and there was no showing of the board's intentional or purposeful discrimination of a "particular class." In holding the Amendment not violated, the Court, at page 8 of 321 U.S., at page 401 of 64 S.Ct., 88 L. Ed. 497, states the distinction between a mere incidental violation of a non-discriminatory state law and a purposeful "class" discrimination, as follows:
"The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, cf. McFarland v. American Sugar Refining Co., 241 U.S. 79, 86, 87, 36 S. Ct. 498, 501, 60 L. Ed. 899, or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself, Yick Wo v. Hopkins, 118 U.S. 356, 373, 374, 6 S. Ct. 1064, 1072, 1073, 30 L. Ed. 220. * * *" (Emphasis supplied.)
In the Los Angeles telephone case the sole finding of fact was that the city authorities had established a telephone rate which was confiscatory. On this alone it was held that the city violated the Fourteenth Amendment. There could be no finding that the law authorizing the rate fixing was not "fair on its face." Nor was there any finding of the city's purposeful discriminatory design to favor one individual or class over another.
Screws v. United States, 325 U.S. 91, 103, 65 S. Ct. 1031, 89 L. Ed. 1495, 162 A.L.R. 1330, upholds the validity of the twin section 19 of the Criminal Code against the charge of a vagueness so complete that it fails to describe a crime, by construing it to apply only where (at page 107 of 325 U.S., at page 1038 of 65 S.Ct.) the parties charged "had the purpose to deprive the prisoner of a constitutional right," there "the right to be tried by a court rather than by ordeal." "For the specific intent required by the Act is an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them." Page 104 of 325 U.S., at page 1037 of 65 S.Ct.
In three respects the instant case is even stronger than the Screws case. There the killing of the prisoner was held no more than a possible violation of the Fourteenth Amendment and punishable in the federal courts though also punishable under the state law. There the law under which the arrest was made was "fair on its face" and the case was returned to the jury to be tried under a proper instruction as to whether the "intent" with which the killing was committed was to violate that Amendment. Here the regulation shows "on its face" the denial of equal protection of the California laws, prevention of which is the very purpose of that Amendment. Here the "intent" so to deny such protection by the enforcement of the regulation is proclaimed in the briefs to this court.

## 3

Since the applicable criterion is whether the segregating regulation of each district is discriminatory and not fair on its face, it is pertinent that they clearly fail even to give equal facilities to the children in the two classes of schools.
The teacher of a class of both English and non-English speaking pupils is not the same facility to the English speaking pupils that the same teacher would be to a class made up entirely of those speaking English. There is diverted to the teaching of English to the Spanish speaking pupils much of the teacher's professional energy and time which otherwise would be given to an English speaking class. The district court inferentially so holds in its finding XI,
   "English language deficiencies of some of the children of Mexican ancestry as such children enter elementary public school life as beginners may justify differentiation by public school authorities in the exercise of their reasonable discretion as to the pedagogical methods of instruction to be pursued with different pupils, and foreign language handicaps may be to such a degree in the pupils in elementary schools as to require separate treatment in separate classrooms * * * Omnibus segregation *785 of children of Mexican ancestry from the rest of the student body in the elementary grades in the schools involved in this action because of language handicaps is not warranted by the record before us."
This court judicially is aware that a century ago when California was taken over by the United States, the majority of its population was Mexican. Four generations of these people have been educated in English speaking schools. To these should be added the third and second generations of succeeding Mexican immigrants to California. A very large percentage of the present day school children descended from Mexican nationals is English speaking. Many of those of older established families do not speak Spanish. All such children are discriminated against by the impaired facility of the teacher, occupied with teaching English to their classroom associates as compared with those attending schools of English speaking pupils.

## Notes

   "While this Court has not attempted to define with exactness the liberty thus guaranteed [by due process clause of the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual [1] to contract, [2] to engage in any of the common occupations of life. [3], to acquire useful knowledge, [4] to marry, [5] to establish a home and bring up children, [6] to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. [Citing cases.]"
   "I do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of the office of * * * according to the best of my ability."
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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