Amicus Curiae Brief — Davis v. Bandemer

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IN THE

Supreme Court of the GQnited States

OCTOBER TERM, 1984

SUSAN J. DAVIS, et al.,

Appellants,

VS.

IRWIN C. BANDEMER, et al.,

Appellees.

Appeal From The United States District Court

For The Southern District of Indiana

MOTION FOR LEAVE TO FJLE AMICUS CURIAE

BRIEF AND AMICUS CURIAE BRIEF OF THE

MEXICAN AMERICAN LEGAL DEFENSE AND

EDUCATIONAL FUND

ANTONIA HERNANDEZ JOSE GARZA

*JOHN E. HUERTA, Mexican American Legal

Mexican American Legal Defense & Educational

Defense & Educational Fund

Fund 517 Petroleum Commerce

634 South Spring St., Blidg.,

Suite 1100 201 North Saint Mary’s St.,

Los Angeles, CA 90014 San Antonio, TX 78205

(213) 629-2512 (512) 224-5476

Counsel for Amicus Curiae Of Counsel

*Counsel of Record

May, 1985

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Whether partisan gerrymandering

is justiciable?

Whether the votes-to-seats ratio

utilized by the court below

conflicts with prior decisions of

this Court and threatens

discrimination against Hispanics?

TABLE OF CONTENTS

Question Presented

Table of Contents

Table of Authorities

Motion for Leave to File

Amicus Curiae Brief

Interest of Amicus Curiae

Statement of the Case

Summary of Argument

Argument:

I. Claims of Partisan Gerrymander

are Not Justiciable because

there are No Neutral and Non-

Partisan Judicially Manageable

Criteria to Guide the Court.

II. The Votes-to-Seat Ratio Offends

Prior Decisions of this Court

and Unlawfully Discriminates

against Hispanics.

Conclusion

iii

TABLE OF AUTHORITIES CITED

Cases

Baker v. Carr, 9,14

369 U.S. 186 (1962)

Burns v. Richardson, 11,21

384 U.S. 73 (1985)

Castaneda v. Partida, 22

430 U.S. 482 .(1977)

Cisneros v. Corpus Christi ISD, 23

467 F. 2d 142 (5th Cir. 1972)

Independent School District v. 23

Salvatierra, 33 S.W. 2d 790

(Tex. Civ. App. San Antonio 1930),

cert. den., 284 U.S. 580 (1931)

City of Lockhart v. U.S., 2

460 U.S. 125 (1983)

Clifton v. Puente, 23

218 S.W. 2d 790 272 (Tex. Civ.

App. 1930)

Cousins v. City Council of the City 13

of Chicago,

466 F. 2d 830, at 8344, cert.

denied, 409 U.S. 893 (1972)

Garcia v. Victoria ISD, 23

17 EDD 8544 (S.D. Tex. 1978)

Gomillion v. Lightfoot, 18

364 U.S. 339 (1960)

Graves v. Barnes, 24

343 F. Supp. 704 (W.D. Tex.

1972)

Hernandez v. Texas, 22

347 U.S. 475 (1954)

Hicks v. Miranda, 13

422 U.S. 332 (1975)

iii

Jordan v. Winter, 10

No. GC 82-80-WK-0

one Miss., 4/16/84)

a sub nom. Brooks v.

Allain in Mississippi

Republican Executive

Committee v. Brooks,

U.S. , 105 S.Ct. 416

(1984)

Karcher v. Daggett, 8,18

462 U.S. 725 (1983)

Ketchum v. Byrne, 2

740 F. 2d 1398 (1984),

cert. pend. sub nom.

City Council of City

of Chicago v. Ketchum,

No. 84-627, October 18, 1984

Keyes v. School District No. l, 23

Denver, Colorado, 413 U.S. 189

(1973)

Mobile v. Bolden, 19

446 U.S. 55 (1980)

Moreno v. Henckel, 24

431 FP. 2d 1299 (Sth Cir. 1970)

Sabala v. Western Gillette, Inc., 22

516 F. 2d 1251 (5th Cir. 1975)

Sanchez v. Standard Brands, Inc., 24

431 FP. 2d 455 (Sth Cir. 1970)

Saucedo v. Brothers Well Service, 23

Inc., 498 FP. 2d §41l (5th Cir.

1974)

United States v. Carolene 14

Products Co.,

304 U.S. 144, (1983)

White v. Regester, 2,24

412 U.S. 755 (1973)

WMCA, Inc. v. Lomenzo, 13

382 U.S. 4 (1965)

Cee

Statutes Secretary of State, State of 28,30

Official Canvass of

section 2 of the Voting Rights 19 . a: to 6, 1984,

Act of 1965, as amended, General Election, (December

42 U.S.C. §1983 15, 1984)

Senate Report No. 94-295, 24

Texts Hearings on the Extension

) Righ Act to

Cain, B., The Reapportionment Puzzle 10 ome one Spee ae

(Univ. of Calif. Press 1984) Congressional and Admin. News.

Campbell, A., Converse, P., 26 Verba, S., & Nie, N., 26

Miller, W., Stokes, D., Participation in America

The American Voter (1964) (Harper & Roe 1972)

House Report No. 94-196, ; 24 Wolfinger, R., & Rosenstone, S., 26

Hearings on Extension of Voting Who Votes (Yale 1980)

Rights Act to Texas

1975 U.S. Code Congressional

and Admin. News.

Tex. Att'y Gen. Op., 23

May 27, 1925

Tex. Att'y Gen. Op., 23

No. V-150 (1947)

U.S. Bureau of the Census, 17,31

Congressional Districts of |

the 99th Congress: California, )

PHC80-4-6 (1985)

U-S. Bureau of the Census, 21,24-27

Statistical Abstract of the

United States: 1985 (1984)

U.S. Bureau of the Census, 21

General Population Character-

istics, United States Summary,

PC80-1-Bl, (1981)

U.S. Comm. on Civil Rights, 22

Mexican Americans and the

Administration of Justice in

the Southwest (1970)

U.S. Comm. on Civil Rights, 23

Mexican American Education Study

(1967-1974)

ee a eee

tere te

No. 84-1244

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

SUSAN J. DAVIS, et al.,

Appellants,

vs.

IRWIN C. BANDEMER, et al.,

Appellees.

APPEAL FROM THE UNITED STATES |

DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF INDIANA

MOTION OF MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL FUND

POR LEAVE TO FILE BRIEF AMICUS CURIAE

Pursuant to Rule 42.2.(b) of the Rules

of this Court, the Mexican American Legal

Defense and Educational Fund (MALDEF)

respectfully move for leave to file a brief

as amicus curiae in support of appellants

Susan J. Davis, et al. Appellants and NAACP

plaintiffs have consented to the filing of

this brief; appellees refuse consent.

Interest of Amicus Curiae

The Mexican American Legal Defense &

Educational Fund (MALDEF) is a national

civil rights organization established in

1968. Its principal objective is to secure

the civil rights of Hispanics living in the

United States through advocacy, education

and litigation.

MALDEF has long been active in reap-

portionment and redistricting issues. It

has litigated White v. Regester, 412 U.S.

755 (1973), and City of Lockhart v. U.S.,

460 U.S. 125 (1983), before this Court.

Currently MALDEF represents one of the

respondents in Ketchum v. Byrne, 740 F.2d

1398 (1984), cert. pend. sub nom. City

Council of City of Chicago v. Ketchum, 84-

627, October 18, 1984.

Reapportionment is of vital concern to

the Hispanic community. MALDEF's interest

in the instant litigation is based on the

concern that Hispanics will be adversely

affected in future reapportionments if the

standard applied by the court below is

allowed to stand. The lower court empha-

sized compactness and compared voter turn-

out to electoral seats won in deciding

whether a prima facie case of partisan

gerrymandering existed. Because of the

unique demographics of the Hispanic commun-

ity, such a proportional standard will have

a devastating impact on the ability of

Hispanics to have districts fairly drawn.

Indeed, the lower court's proposed standard

conflicts with prior decisions of this

Court concerning proportional representa-

tion and federal and constitutional provis-

ions protecting minority voting rights.

STATEMENT OF THE CASE

The court below, a three judge panel

appointed pursuant to- 28 U.S.C. §2284, in

an unpublished opinion,! invalidated the

1981 Indiana House and Senate reapportion-

ment plans and held that Indiana Democrats

were the victims of a partisan gerrymander-

ing by the Republican leadership of the

Indiana legislature (A-32-33).

The Honorable James E. Noland, Chief

District Judge, writing for the major-

ity,2 found that it was “significant ..

- that in 1982 Democratic candidates for

the Indiana House earned 51.9 percent of

TALL references to the trial court's

opinion in this brief are to Appendix A of

the Appellant's Jurisdictional Statement.

2The Presiding Judge, the Honorable

Wilbur F. Pell, Jr., dissented on the

partisan gerrymander issue.

all votes cast across the state. However,

only 43 Democrats were elected to seats"

out of the 100 House seats up for election

(A-11). The Court found that “the dispar-

ity between the percentage of votes and the

number of seats won is, at the very least,

a signal that Democrats may have been

unfairly disadvantaged by the redistrict-

ing." —(A-12) 3

The Court then examined the shapes of

the districts to determine whether a part-

isan gerrymandering occurred. The Court

found "a lack of any consistent application

of ‘community of interest'* principles."

3In the Indiana Senate the Court found

that of the 25 seats which were up for

election, the Democrats won 53.1 percent of

the vote and 13 Senate seats. (A-12)

4mhe Court defined "community of

interest” as the inclusion of citizens ina

given legislative district who share a

geographic area, with similar concerns and

needs to be met by their state

legislators.” A-14

(A-14) Using Marion County as an example,

the Court found the “shapes are unusual for

a number of reasons, notably because of the

necessity of adding townships from contig-

uous counties. to preserve the 15-seat

Marion County delegation to the Indiana

House despite a population decrease."

(footnote omitted) (A-15)

The court further found that "“"[t]hese

districts are particularly suspect with

respect to compactness." In scrutinizing

District 48, the Court found that the

district formed the letter "C" around the

central city of Indianapolis. (A-15)

The court next examined the motivation

of the Republican leadership in adopting

the Indiana reapportionment plan. Other

than a concern for the one person, one vote

principle and a concern about no “"retro-

gression" of black representation from

prior years, the court found "most notably”

that the majority party wished to "insulate

itself from the risk of losing its control

of the General Assembly." (A-17)

Finally, the Court examined the use of

multimember districts in the House plan.

The Court “found that the disadvantaging

effect of the plan's multimember districts

falls particularly hard and harsh upon

black voters in the state.” The court found

that 81.2 percent of blacks as compared to

35 percent of whites lived in multimember

districts, and that only 43 percent of the

blacks lived in multimember districts where

blacks comprise a majority of the voters.

(A-18)5

SThe NAACP, in a Separate law suit which

was later joined to this case, also chal-

lenged the Republican reapportionment plan

as having intentionally fragmented the

black population concentrations in viola-

tion of the 14th and 15th amendments and as

having perpetuated the effective dilution

of black voting strength in violation of

section 2 of the Voting Rights Act of 1965,

42 U.S.C. §1973}, as amended 1982.

The court below ruled against the

In the trial court's Analysis and

Conclusions of Law, it did not discuss the

‘justiciability of partisan gerrymandering

nor review this Court's prior determina-

tions on this issue. Instead, based upon

Justice Stevens' concurring opinion in

Karcher v. Daggett, 462 U.S. 725 (1983),

it concluded that the “district lines were

drawn with the discriminatory intent to

‘maximize the voting strength’ of the

Republican Party and to ‘minimize _ the

strength’ of the Democratic Party. .. -

and therefore .. . violat(ed) - . . the

Equal Protection Clause in the form of

political gerrymandering. . oS (A-

25)

NAACP plaintitts holding “that the voting

efficacy of the NAACP plaintiffs was im-

pinged upon because of their politics and

not because of their race.” (A-20)

SUMMARY OF ARGUMENT

The court below leaped into a politi-

cal quagmire when it determined without

analysis of prior case law that partisan

gerrymandering constitutes a justiciable

Claim under the equal protection clause of

the 14th amendment. In Baker v. Carr, 369

U.S.-186 (1962), this Court transformed a

constitutional right into a judicially

enforceable right because there was a

clear and neutral standard -- one person,

one vote -- by which the judiciary could

measure compliance with the constitutional

mandate of equal protection.

But no such standards exists to eval-

uate claims of partisan gerrymandering. To

be sure, there are criteria which can be

used in drawing districts, but they are not

neutral. Many of the more popular criteria-

-compactness, respect for local political

boundaries, community of interest, -- may

conflict with one another or conflict with

other constitutional principles such as

equality of population, or dilution of

minority voting rights.

In formulating a standard by which to

evaluate partisan gerrymandering, the court

below emphasizes compactness ® and comp-

ares the popular votes cast statewide with

the number of seats won to determine the

extent of partisan gerrymandering. If this

SThe trial court's emphasis on compact-

ness will seriously dilute Hispanic politi-

cal representation. In many areas of the

Southwest, Mexican Americans sprawl

throughout a geographic area, e.g-, along a

meandering river valley, crossing city or

county boundaries. An emphasis on compact-

ness as opposed to community of interests

will completely submerge the electoral

strength of the Hispanic community. See, B.

Cain, The Reapportionment Puzzle 46-68

(University of California Press 1984); see

also, Jordan v. Winter, No. GC 82-80-WK-0

(N.D. Miss., April 16, 1984), aff'd sub

nom. Brooks vy. Allain in Mississippi

Reublican Executive Committee v. Brooks,

ie tetra 105 ~S.ct. 416 ~ (1984)

(sprawling uncompact districts in court

ordered interim plan adopted to assure fair

racial representation).

approach is allowed to stand, it will draw

the trial court into conflict with this

Court's rulings on the one person, one vote

principle, and its prohibition against

proportional representation. Ultimately,

it will unlawfully dilute minority, espe-

cially Hispanic, representation.

In Burns v- Richardson, 384 U.S. 73,

this Court warned against using voter

registration and voter turnout as a guide

to apportioning districts. Because Hispan-

ics and other minority groups have been the

victims of discrimination in the political

process, and because they are younger, have

lower education and income levels, and have

higher unemployment and poverty rates than

the dominant groups in American society,

minorities, especially Hispanics, are less

likely to be politically active, to regis-

ter and to vote. The effect of the trial

court's votes-to-seats-won standard for

determining a prima facie case of partisan

gerrymandering is that Districts will be

drawn primarily reflecting voter turnout,

thus perpetuating underrepresentation of

Hispanics and other minority groups in

American society. The political gains that

Hispanics and other minorities have made

over the last decade will be eroded.

ARGUMENT

CLAIMS OF PARTISAN GERRYMANDER-

ING ARE NOT JUSTICIABLE BECAUSE

THERE ARE NO NEUTRAL AND NON-

PARTISAN JUDICIALLY MANAGEABLE

CRITERIA TO GUIDE THE COURT.

The court below leaped into a politi-

cal quagmire when it decided without analy-

sis of prior case law’ that partisan

gerrymandering constitutes a justiciable

Claim under the equal protection clause of

the 14th amendment. This imprudent judg-

‘The Court below was bound by precedent

of this Court and by the 7th Circuit. In

WMCA, Inc. v. Lomenzo, 382 U.S. 4 (1965),

this Court summarily affirmed a three judge

district court decision rejecting a

constitutional challenge for partisan

gerrymandering to a a New York legislative

reapportionment. Lower courts are bound by

summary decisions of the Supreme Court.

Hicks v. Miranda, 422 U.S. 332, 344-45

(1975). The 7th Cir., in Cousins v. Cit

Council of the City of Chicago, 466 Fad

830, at 844, cert. denied, 409 U.S. 893

(1972) followed WMCA, holding that

partisan gerrymandering is nonjusticiable.

ment contravenes the efforts of this Court

to move cautiously and forcefully in close-

ly scrutinizing “highly suspect” govern-

mental classifications which discriminate

on the basis of race, color or national

origin8,

In Baker v. Carr, 369 U.S. 186 (1962),

this Court significantly clarified the

"political questions doctrine’? and

SThe classic statement of this issue is

Justice Stone's footnote in United States

v. Carolene Products Co., where he states:

"legislation . . . (may) be subjected

to more exacting judicial scrutiny

(when) . . -« directed at particular

religious, . . .- Or mational, .. .

Or racial minorities .. . .(P)rejud-

ice against discrete and _ insular

minorities may be a special condition,

which tends seriously to curtail the

operation of those political processes

ordinarily to be relied upon to pro-

tect minorities, and which may call

for a correspondingly more searching

judicial inquiry." 304 U.S. 144,

152-53 at n. 4 (1938) (Emphasis added.)

9Many of the ‘political question" guide-

lines considered and overcome by the Court

in the case of challenges to malapportioned

districts based on population inequality

required states to fairly apportion dist-

ricts on an equal population basis. The

Court in Baker was able to transform a

constitutional right into a judicially

enforceable one because there was a non-

partisan and neutral "“"judici' ‘ly manage-

able” Rennderd -- one person, one vote --

by which the judiciary could measure comp-

liance with the Constitutional mandate of

equal protection.

are much more problematic in cases chal-

lenging partisan gerrymandering:

"Prominent on the surface of any case

held to involve a political question

is found .. . a lack of judicially

discovereble and manageable standards

for resolving it; or the impossibility

of deciding without an initial policy

determination of a kind clearly for

nonjudicial discretion; or the

impossibility of a court's undertaking

independent resolution without

expressing lack of the respect due

coordinate branches of government; . .

se” Gee Ceo GS Bare (Emphasis

added.)

Claims of partisan gerrymandering are

a political quagmire precisely because no

neutral nor nonpartisan standards exist

to impartially judge this phenomena. There

are, to be sure, criteria which can be used

in drawing districts. But they are judgment

laden, not neutral, criteria and they are

not constitutionally mandated. Many of the

more popular criteria -- compactness,

respect for local political boundaries,

community of interest, -- reflect political

valuesl0and may conflict with one

tUpolitical groups are not spread evenly

throughout a state. The choice of where to

place political boundaries and what

priority one standard ought to have over

another reflects a political value. For

example, as between two competitive groups,

compactness will favor a group which is

evenly spread throughout an entire state

because of the "wasting" of votes which is

likely to occur if the other group is

highly concentrated in large numbers in a

few areas.

anotherll or conflict with other

constitutional principles such as equality

TiCommunity of interest may conflict with

compactness. For example, if an agricultu-

ral community surrounds a large urban area,

the choice may be between a donut shaped

district (reflecting priority given to two

separate community of interests) or two

nicely shaped districts, resulting in the

complete submergence of agricultural inter-

ests to urban interests (reflecting a

preference for compactness).

Likewise, respect for local political

boundaries may conflict with the compact-

ness principle especially if an urban area

has an unusual geographic shape. See,

e.g-, J.-S. Bureau of the Census, Congress-

Tonal Districts of the 99th Congress (Cal-

ifornia), sheets 10 and ll, pp. 93-94

(1985) (political boundaries of the City of

Industry, California, has long tentacles

reaching across the San Gabriel Valley).

The community of interests of minority

groups sometimes come into conflict with

the compactness principle. Hispanic

voters, for example, sprawl throughout the

Los Angele County area. Because of the

unique demographics of the Hispanic commun-

ity (see footnotes 23-28, infra), Hispanic

electoral strength will be completely

diluted if the compactness principle is

followed. See, authorities cited in foot-

note 6, supra.

of population,!2 or prohibitions against

- dilution of minority voting rights.13

*“Since population equality is paramount,

especially in Congressional reapportion-

ment, (see Karcher v. Daggett, supra,)

local jurisdictions sometimes must _ be

depending upon the location of the juris-

diction within a state, even if a local

jurisdiction is the exact size as a Cong-

ressional District because of the "ripple

effect" of evenly dividing a population

throughout a state.

13 The classic case of racial gerrymander-

ing is Gomillion v. Lightfoot, 364 U.S. 339

(1960). It is not inconceivable that a

City like Tuskegee could draw its council-

manic districts including its 40% black

population within the jurisidiction of the

city and at the same time exclude them from

political power using “neutral” principles

such as compactness. The city lends itself

to one at large mayoral position and four

councilmanic districts drawn on a north-

south and east-west axis. Because of the

location of the black population within the

city of Tuskegee, see 364 U.S. at 389

(chart showing the City of Tuskegee, Alaba-

ma), such a “neutral” plan would effective-

ly eliminate black political participation.

THE — RATIO OFFENDS

PRIOR DECISIONS OF THIS COURT AND

UNLAWFULLY DISCRIMINATES AGAINST

HISPANICS.

The court below compares the 1982

popular statewide Democratic vote (51.8%)

in the Indiana House with the number of

seats won (43%) by the Democrats as a means

of determining whether there was partisan

gerrymandering. By focusing on the ratio of

actual votes cast to number of seats won,

the court offends the one person, one vote

standard, comes perilously close to adopt-

ing a rule of proportional representation -

- an outcome which neither this Court, (see

Mobile v. Bolden, 446 U.S. 55, 76, 86,

1980), nor Congress (see Section 2 of the

Voting Rights Act of 1965, as amended, 42

U.S.C. §1973) has ever condoned, and

unlawfully dilutes Hispanic voting

rights.14

This Court has warned against the

use of both voter registration and voter

turnout criteria as a guide to apportioning

districts:

"Use of a registered voter or

actual voter basis presents an

additional problem. Such a basis

depends not only upon criteria

such as govern state citizenship,

but also upon the extent of

political activity of those

eligible to register and vote.

“Tafhere are additional problems with the

votes-to-seats ratio. While the ratio seems

to be an easy method to measure partisan

gerrymanding, the votes-to-seats ratio

oversimplifies the electoral and reappor-

tionment processes.

The court below did not analyze many

of the complexities present’ in the elector-

al process which may account for a discrep-

ancy in the votes-to-seats ratio. For

example, a few of the factors influencing

the votes to seat ratio include: the number

of candidates who were incumbents; the

amount of money raised and spent by each

candidate; the number of votes cast for

uno sed candidates; the litical

afFitiation of the unopposed candidates,

the significance of local, regional, state

or national issues affecting the outcome of

a particular election.

Each is thus susceptible to

improper influences by which

those in political power might be

able to perpetuate underrepresen-

tation of groups constitutionally

entitled to participate in the

electoral process, or perpetuate

a ‘ghost of prior malapportion-

ment." Burns v. Richardson, 384

U.S. 73, at 92-93 (1985)

Hispanic groups in the United States

have a lower voter turnout compared to

other groups in American society.15

The reasons for the low Hispanic voter

turnout are varied. Historically, Mexican

Americans and Puerto Ricans, the two larg-

est Hispanic groupslé, have been

~T3According to the Census Bureau, the

percentage of individuals registered to

vote in 1982 are: Whites-65.6%; Blacks-

59.1%; Hispanics-35.3%. The percentage of

individuals who actually voted in 1982 are:

Whites-49. 9%; Blacks-43.0%; Hispanics-

25.3%. U.S. Bureau of the Census, Statisti-

cal Abstract of the United States: 1985,

254 (1984) (hereinafter cited as Statistical

Abstract of the United States: 1985).

l60f the 14.6 million Hispanics enumerated

by the 1980 census, 60% were of Mexican

Origin, 14% of Puerto Rican origin, 5% of

Cuban origin, and 21% of other Spanish

Origin. U.S. Bureau of the Census, General

victimized by discrimination in every

conceivable public and private enterprise

from jury selection,!7 to segregated

Population Characteristics, United States

Summary, PC80-1-Bl, 1-14 (1981)

l7See, e.g., Hernandez v. Texas, 347 U.S.

475 (1954); Castaneda v. Partida, 430 U.S.

482 (1977); see generally, U.S. Comm. on

Civil Rights, Mexican Americans and the

Adminitration of Justice in the Southwest

(1970).

schools,18 housing,!9 public accommoda-

tions,29 employment,2! and the political

4+08See, e.g-, Keyes v. School District No.

1, Denver, Colorado, 413 U.S. 189 (1973);

Cisneros v. Corpus Christi ISD, 467 F.2d

142 (Sth Cir. 1972); U.S. v. Texas Educa-

tion Agency (Austin I), 467 F.2d 848 (5th

Cir. 1972)(en banc); Independent School

District v. Salvatierra, S.W.2d 790

(Tex.Civ.App.-San Antonio 1930), cert.

den., 284 U.S. 580 (1931); Tex.Att'y

Gen.Op., May 27, 1925 (bond approval for

Mexican-American schools); see generally,

U.S. Comm. on Civil Rights, Mexican Ameri-

can Education Study 1967-1974, cited with

approval by this Court in Keyes, supra, at

197 (N. 7, 8).

19see, e.g., Clifton v. Puente, 218 S.W.2d

790 (Tex.Civ.App. 1930) (restrictive cove-

nants against persons of Mexican descent).

20see, e.g., Tex.Att’y Gen.Op., No. V-150

at TS” (1949) (nexican Americans barred from

swimming pools); see also, Rangel, De Jure

Segregation of Chicanos in Texas Schools, 7

Harv.Civ.Rts. & Civ.Lib.L.Rev. 307 (1972)

(Mexican Americans not served in restar-

aunts, drug stores, barber shops, beauty

shops, theaters, hotels, bowling alleys,

cemeteries). |

2lEmployment discrimination by both public

and private employers has been extensively

documented. See, e.g., Garcia v. Victoria

ISD, 17 EDD 8544 (S.D.Tex. 1978); Sabala v.

Western Gillette, Inc., 516 F.2d 1251 (5th

Cir. 1575); Saucedo v. Brothers Well Serv-

ice, Inc., 498 F.2d 641 (5th Cir. 1974);

process itself.22 This governmental and

societal discrimination is responsible in

part for Hispanics having lower education-

al23, employment24 and family income25

Moreno v. Henckel, 431 F.2d 1299 (5th Cir.

; Sanchez v. Standard Brands, Inc.,

431 F.2d 455 (5th Cir. 1970).

22see, e.g-, Graves v. Barnes, 343 F.

Supp. 704 (W.D. Tex. 1972) (three judge

court), aff'd in ere art, sub nom,

White v. Regester, 755-1973) .