WESTERN LEGAL HiSTORY

WESTERN LEGAL HiSTORYTHE JOURNAL OF THE

NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY

VOLUME 23, NUMBER 1 2010

Western Legal History is published semiannually, in spring and fall, by theNinth Judicial Circuit Historical Society, 125 S. Grand Avenue, Pasadena,California 91105, (626) 795-0266/fax (626) 229-7476. The journal explores,analyzes, and presents the history of law, the legal profession, and the courts-particularly the federal courts-in Alaska, Arizona, California, Hawai'i, Idaho,Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands.

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NINTH JUDICIAL CIRCUIT HISTORICAL SOCIETY

BOARD OF DIRECTORS

JEFFREY M. FISHER, ESQ.ChairSan Francisco

JOHN FRANCIS CARROLL, ESQ.Chair-electSan Pedro

GARETH T. EVANS, ESQ.TreasurerLos Angeles

PAUL T. FRIEDMAN, ESQ.SecretarySan Francisco

MARC M. SELTZER, ESQ.Immediate Past ChairLos Angeles

SETH ARONSON, ESQ.Los Angeles

JEROME L BRAUN, ESQ.San Francisco

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RITA M. HAEUSLER, ESQ.Los Angeles

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ADVISORY COUNCIL

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LEROY J. BARKER, ESQ.Co-chairPortland

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HON. CHRISTINE W. BYRDLos Angeles

PARKER C. FOLSE III, ESQ.Seattle

FREDERICK P. FURTH, ESQ.Healdsburg

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WESTERN LEGAL HISTORY

BRADLEY B. WILLIAMS, EDITOR

JUDITH FORMAN, COPY/PRODUCTION EDITOR

EDITORIAL BOARD

JUDITH AUSTINBoise

GORDON MORRIS BAKKENCalifornia State University,Fullerton

MICHAL BELKNAPCalifornia WesternSchool of Law

HON. JAMES R. BROWNINGSenior Circuit Judge,U.S. Court of Appealsfor the Ninth Circuit

ELIZABETH J. CABRASER, ESQ.San Francisco

LAWRENCE M. FRIEDMANStanford Law School

CHRISTIAN G. FRITZUniversity of New MexicoSchool of Law

DALE GOBLEUniversity of IdahoSchool of Law

HON. ALFRED T. GOODWINSenior Circuit Judge,U.S. Court of Appealsfor the Ninth Circuit

PAUL BRYAN GRAY, ESQ.Claremont

MICHAEL GRIFFITH, PH.D.Oakland

STEPHEN W. HAYCOX, PH.D.University of Alaska,Anchorage

ARTHUR D. HELLMANUniversity of PittsburghSchool of Law

DAVID J. LANGUMSamford UniversityCumberland School of Law

CLARE V. MCKANNA, JR.San Diego State University

R. JAMES MOONEYUniversity of OregonLaw School

CLAUS-M. NASKEUniversity of Alaska,Fairbanks

PAULA PETRIK, PH.D.George Mason University

PETER L. REICHWhittier Law School

JOHN PHILLIP REIDNew York UniversitySchool of Law

HARRY N. SCHEIBER, PH.D.University of CaliforniaBoalt Hall School of Law

MOLLY SELVIN, PH.D.Santa Monica

ROBERT S. WOLFE, ESQ.Santa Ana

JOHN R. WUNDER, J.D., PH.D.University of Nebraska

WESTERN LEGAL HiSTORY

VOLUME 23, NUMBER 1

2010

CONTENTS

The Railroads Must Have Ties:A Legal History of Forest Conservationand the Oregon and California RailroadLand Grant, 1887-1916

Sean M. Kammer

The Coldest Case of All? Lloyd Gainesand the African American Struggle forHigher Education in Missouri

Sarah Riva

Upholding Culture and Language inGuadalupe, Arizona: Bilingual EducationActivism in the 1970s

Lindsey Passenger Wieck r7

Book Reviews 87Articles of Related Interest 95Memberships, Contributions, & Grants 103

Cover photo: Edward H. Harriman, shown here, and his rolein the conservation of Oregon's timber lands is the subjectof Sean Kammer's essay in this issue. (Courtesy of UnionPacific Museum)

JEROME 1. BRAUN(Courtesv of Fareiba Bratin & Martel)

JEROME 1. BRAUN: A TRIBUTEJeffrey M. Fisher*

About a dozen years ago, one of my colleaguesat Farella Braun & Martel came into my office andasked me if I wanted to work on a project-a biog-raphy of the late Ninth Circuit Judge Cecil Poole-with one of the firm's senior partners. So began myrelationship with Jerome I. (Jerry) Braun. Since thattime, Jerry has been a wonderful mentor, teacher,and friend to me.

Throughout his distinguished career, Jerry hasmaintained a diverse trial and appellate practice inareas such as commercial litigation, complex andmultidistrict litigation, securities regulation, anti-trust, and legal malpractice. He became presidentof the California Academy of Appellate Lawyersand was elected a fellow in the American College ofTrial Lawyers. He is also a Fellow of the AmericanAcademy of Appellate Lawyers and served as the edi-tor of its newsletter, "The Appellate Advocate," forsix years. He remains one of the finest writers-withone of the deepest vocabularies-I have ever knownand is the author of many articles in professionaland scholarly publications. Jerry was also the propo-nent of California Supreme Court Rule 29.5, permit-ting certification of questions of state law by federalappellate courts. At age eighty-one, he is still going.He now concentrates on federal practice and on hiswork as an arbitrator and mediator, and has servedthe federal courts as a special master.

Jerry also has been very active in Ninth Circuitgovernance issues and on behalf of Stanford Uni-

*Jeffrey M. Fisher is chair of the Ninth Judicial Circuit HistoricalSociety Board of Directors.

versity (he graduated from Stanford Law School in1952) and Jewish philanthropies. He has served formore than thirteen years on the board and currentlyserves as chair of fundraising efforts for The OtherBar, a nonprofit network of recovering lawyers andjudges throughout the state of California. He is aninspirational speaker about issues relating to alcoholand substance abuse problems and how they affectlawyers. Hearing Jerry speak about his personalexperiences with overcoming alcoholism is a trulymoving experience.

Jerry also twice served as a member and then chairof the Lawyer Representatives to the Ninth CircuitJudicial Conference and was chair of the NinthCircuit Judicial Senior Advisory Board. He was oneof the early members of the Ninth Judicial CircuitHistorical Society, acting as president from 1990 to1993. He continues to serve the society in a varietyof ways; among his greatest accomplishments washis leadership in the society's effort to publish CecilPoole, A Life in the Law, a biography of Judge Poolegeared toward young readers. This important biog-raphy would never have been written without histireless efforts.

In 1999, Jerry received the American Inns of CourtProfessionalism Award as "a senior lawyer practicingin the Ninth Circuit whose life and practice displaysterling character and unquestioned integrity, coupledwith ongoing dedication to the highest standards ofthe legal profession and the rule of law." In 2005, hewas awarded the Ninth Circuit's highest accolade,the John P. Frank Award, which recognizes an out-standing lawyer practicing in the federal courts ofthe western United States. As then Ninth CircuitChief Judge Mary M. Schroeder aptly commented,"Jerry Braun's accomplishments as a lawyer and amentor are legendary, as are his contributions to the

Vmii WEs-rERN LEGAL HiSTORY VOL. 23., No. 1

WINTER/SPRING 2010 JEROME 1, BRAUN: A TRIBUTE ix

legal community, and the courts. His enthusiasm isboundless and he is very deserving of this recognition."

None of these achievements or accolades, how-ever, adequately describes what Jerry exudes as hesimply walks around the office of Farella Braun &Martel, the firm that he cofounded almost fifty yearsago (always dressed to the nines in a suit, with hissignature bow tie): his true love of the law, of thejudges who interpret it, and of the attorneys whopractice it. It is Jerry's love of the law and its history,as well as his many years of service, that led theNinth Judicial Circuit Historical Society to establishthe Jerome . Braun Prize for Western Legal Historyin his honor.

Editor's note:

This issue contains essays by the recipients ofthe inaugural Jerome I. Braun Prize for WesternLegal History. This annual award is intended toencourage research that illuminates the contribu-tions of the law, lawyers, judges, and law-relatedorganizations to the social, political, economic,and cultural history of the North American West.Funding for the prize has been generously providedby the law firm of Farella Braun & Martel, Marc M.Seltzer and the Honorable Christina A. Snyder, andThe Morrison & Foerster Foundation.

First place was awarded to Sean M. Kammer for hisessay "The Railroads Must Have Ties: A Legal Historyof Forest Conservation and the Oregon & CaliforniaRailroad Land Grant, 1887-1916." Mr. Kammerearned a juris doctor degree from Duke University in2004 and is now a candidate for a Ph.D. in Americanlegal history at the University of Nebraska. His essaychallenges the view of Union Pacific Railroad tycoonEdward H. Harriman as a rapacious capitalist con-cerned only with corporate profits, highlighting in-stead his attempts to preserve the Oregon forest landsreceived by the company for constructing its line.

The first runner-up was Sarah Riva for her essay"The Coldest Case of All? Lloyd Gaines and theAfrican American Struggle for Higher Educationin Missouri." Ms. Riva received her undergraduatedegree in history at Royal Holloway, University ofLondon, in 2010. She will begin work on a master'sdegree in public history at the University of Arkansasin 2011. Her essay sheds light on Lloyd Gaines' ill-fated attempt to integrate the University of MissouriLaw School in the 1930s.

The second runner-up was Lindsey Passenger Wieckfor her essay "Upholding Culture and Language in

Guadalupe, Arizona: Bilingual Education Activismin the 1970s." Ms. Wieck earned a bachelor's degreein history and secondary education at Grand ValleyState University in Michigan and a master's degreein history at Northern Arizona University in 2010.She is currently working toward a Ph.D. in historyat the University of Notre Dame. Her essay exploresthe successful legal challenge brought by the citizensof Guadalupe, Arizona, against their elementaryschool district's discriminatory treatment of non-English speaking children.

We hope our readers will enjoy these prize-winning essays. And we hope that these authors'success will encourage others to undertake theirown research into the fascinating realm of west-ern legal history.

WESTERN LEGAL HiSTORY VOL. 23, No. Ixn

THE RAILROADS MUST HAVE TIES:

A LEGAL HiSTORY OF

FOREST CONSERVATION AND THE

OREGON & CALIFORNIA RAILROAD

LAND GRANT, 1887-1916

SEAN M. KAMMER

N aturalist and preservationist John A. Muir oncescoffed at the way each of the transcontinental railroads advertisedits line as the "scenic route." In his monumental portrayal ofAmerica's scenic wilderness areas, Our National Parks, heproposed a new and much more honest advertisement: "Come!Travel our way. Ours is the blackest. . .. The sky is black andthe grotud is black, and on either side there is a continuousborder of black stumps and logs and blasted trees appealing toheaven for help as if still half alive, and their mute eloquenceis most interestingly touching.. . No other route on thiscontinent so fully illustrates the abomination of desolation."'Observations such as this one regarding the ecologicaldestructiveness of railroads have tended to obscure the factthat railroad companies themselves were not necessarilyenemies of the environment. Indeed, in some cases they wereat the forefront of the preservationist and conservationistmovements that were still in their infancy at the time ofMuir's writing in 1901. For example, the Southern Pacific, ashistorian Richard Orsi has demonstrated, "took a major role

John A. Muir, Our National Parks (Boston, 1901), 357-58.

Sean M. Kammer holds a J.D. from Duke University and is acandidate for a Ph.D. in American legal history at the Univer-sity of Nebraska-Lincoln, where he is a graduate instructor inthe History Department.

in the emergence of modern management of water, wildernessparks, forests, and rangelands."-

Orsi's conclusions regarding the Southern Pacific contra-dict the traditional view of that company as a "malevolentmonopoly representing selfish, greedy, corporate interests"in opposition to the "people" and the "public interest."3 Buthistorians have, for the most part, left unchallenged a similarnegative view of Edward H. Harriman, who headed both theUnion Pacific and the Southern Pacific and was perhaps themost powerful of the railroad tycoons during the first decadeof the twentieth century.' Prior to Harriman's takeover of theSouthern Pacific in 1901, that railroad's long-standing policyhad been to subdivide and sell lands to farmers, miners, andloggers, the purpose being "to encourage long-term settlement,economic growth, and rail traffic," but Harriman questionedand ultimately rejected this policy.' In January 1903, he orderedthe termination of sales of the remaining Southern Pacific landgrant, including the heavily timbered lands of the Oregon andCalifornia Railroad, which had been a Southern Pacific subsid-iary since 1887.

It remains unclear whether Harriman initially intended forthis suspension to be temporary in order to allow his men toascertain fully the nature of his extensive land holdings, orwhether this move in fact represented a permanent shift inpolicy.6 What is clear is that by 1905 virtually all sales ceased.Local Oregonians, as well as prominent lumber companiesand politicians in the state, accused Harriman of undermin-ing Oregon's development, and a political movement thereultimately led the federal government in 1908 to sue Harriman'sOregon & California Railroad for the forfeiture of its unsoldlands. At the culmination of a seven-year legal battle, the

'Richard J. Orsi, Sunset Limited: The Southern Pacific Railroad and the Devel-opment of the American West, 1850-1930 (Berkeley, CA, 2005), xiv-xv.

'lbid., xvii.

"See, e.g., David Maldwyn Ellis, "The Oregon and California Railroad LandGrant, 1866-1945," Pacific Northwest Quarterly 39:4 (1948): 255-83. Regard-ing the termination of land sales in January 1903, Ellis asserts that "appar-ently his aim was to keep for his company any rise in stumpage values." Ellis,"Oregon and California Railroad Land Grant," 261.

'Orsi, Sunset Limited, 37.6Orsi found evidence that the termination of land sales was, in fact, meant tobe a permanent policy. This is contradicted, however, by the later testimony ofHarriman's land commissioner, Charles W Eberlein, that the termination-atleast as applied to all of the lands of the Southern Pacific, Central Pacific, andOregon & California-was merely to allow Harriman and his centralized landoffice to ascertain the nature of the lands, a process delayed by the San Franciscoearthquake and fire a couple of years later. See Orsi, Sunset Limited, 123-25.

Vot, 23, No. I2 WESTERN LEGAL HiSTORY

RAILROADS MUST HAVE TIES

Supreme Court gave Congress the legal authority to seize theland and to provide for its disposition "in accordance withsuch policy as it may deem fitting"-and Congress quicklypassed the Chamberlain-Ferris Act of 1916, which revested theremaining 2.3 million acres of the grant to the United States.Although historians have, for the most part, accepted the viewthat Harriman's land policies in Oregon were motivated by hisapparently unrivaled speculative spirit, his policies were infact consistent with utilitarian notions of conservation that herecognized as in keeping with his long-term profit motive.

The railroad issues that arose in the first decade of thetwentieth century were rooted in the land-use regime Congresshad established decades earlier. In the middle of the nine-teenth century, federal land grants to railroads were a criticalcomponent of the government's effort to conquer its newlyexpanded public domain. Stephen Douglas orchestrated thefirst such grant to the Illinois Central in 1850, made possibleby his compromise to grant lands in a checkerboard pattern asa way to pay for the subsidy. The granting of public lands torailroads escalated during the Civil War with Congress' passageof the Pacific Railway Act of 1862, which chartered and grantedlands to the Union Pacific and the Central Pacific to aid in theconstruction of a railway from a point on the Missouri River inNebraska to a point on the Pacific Ocean at or near San Francisco,and to the Leavenworth, Pawnee and Western Railroad for theconstruction of a southern branch through Kansas.' This policycontinued in subsequent years with similar grants to aid inthe construction of transcontinental railways to the north andsouth of the Union Pacific-Central Pacific line. In all, the fed-eral government granted roughly 130 million acres to railroads(37 million of which were granted to railroads via the states)from 1850 to 1871.

Railroad land grants shared several common features (asamended, if not originally): "rights-of-way" easements forthe construction of the railways, including the right to usematerials in the vicinity for construction and maintenanceof the lines; the delineation of place limits within which therailroads' grants were contained (these ranged from ten milesto forty miles on each side of the railway); checkerboardprovisions whereby the railroads' grants contained onlyalternate sections; the exclusion of mineral lands (other thancoal and iron) and lands already settled, claimed, or reservedpursuant to federal laws; and the provision for indemnity

'Pacific Railway Act of July 1, 1862, 12 Stat. 489, Statutes at Large, 37t' Cong.,2d sess., ch. 120.

WINTER/SPRING 2010 3


strips outside of the place limits within which the railroadscould select lands in lieu of excluded place lands. In addi-tion, some grants contained restrictions on the timing andmanner of the railroads' disposition of lands to which theyhad received patents.'

As part of this general land grant policy, Congress in 1866granted several million acres to Oregon for the construction ofa railroad from Portland southward to the California border,where such road would connect with another being built fromSacramento. Oregon was directed to designate a company toconstruct the railroad and to receive a land grant consistingof alternating sections of public lands within ten miles of therailway as a subsidy to offset its operating expenses. Threeyears later, after the grant's specified time limit passed withoutany companies taking the required steps to avail themselvesof the grant, Congress renewed the grant but added conditionsto ensure that land was sold to settlers, not speculators. Basedon the new conditions, the railroad receiving the grant wasrequired to dispose of the land only to "bona fide settlers," inparcels no larger than 160 acres, and for no more than $2.50per acre. Together, these conditions were commonly referredto as the "homestead clause." It was under this regime thatthe Oregon & California acquired the rights to more than threemillion acres stretching in a checkerboard pattern from theCoast Range to the Cascade Mountains and from Portland tothe California border.1

The Southern Pacific acquired control of the Oregon &California and its land grant in 1887, shortly after which therailway was completed. From that time until 1901, whenHarriman acquired control of the Southern Pacific and itsconstituent railways, including the Oregon & California, thecompany pursued a policy of disposing of its lands quicklyto develop the country and to build up long-term businessfor the road. Beginning in 1901, Harriman introduced newpolicies to oversee the railroad's use and disposal of the landgrant. Although the various land departments of the constitu-ent railroads had previously enjoyed much autonomy withinthe Southern Pacific system, Harriman sought to central-ize authority and to develop a comprehensive land use plan,

8See Samuel Dana, Forest and Range Policy: Its Development in the UnitedStates (New York, 1956), 36--37, for a succinct summary of the legislative actsthat created the land grants.

9Oregon & California Railroad Co. v. United States, 238 U.S. 393, 409 (1915).

VOL, 23, No. I4

WINTER/SPRIN 2010 RAILROADS MUST HAVE TIEs 5

whereby any of his railroads' lands would be used to benefithis entire system."o

Harriman's strategy required an extensive review of theSouthern Pacific's policies of land disposal up to that point. Re-garding the Oregon & California land grant, the records showedthat the railroad had disposed of 813,000 acres with little re-gard for the homestead clause. In fact, only 127,000 acres weresold in compliance with that clause, while more than half weresold in parcels of more than two thousand acres. The averagesale price was about five dollars an acre, double the maximumallowed." A large portion of the 813,000 acres was sold after1895, when lumber companies and investors became interestedin Oregon's vast timber resources primarily for speculativepurposes. From 1895 to 1901, the company disposed of 363,000acres to only thirty-eight buyers, with prices ranging from fivedollars to forty dollars an acre.'2

Although the homestead clause had little influence on therailroad's decisions regarding disposal of grant lands, the grant'sother measure meant to ensure rapid settlement-its checker-boarding provision-heavily constrained the railroad's activi-ties. One of the principal purposes of checkerboarding was toensure that lands along the railroad were settled and developedrather than held in monopoly by the railroad or any successorin interest. This system, though, as applied to non-agriculturallands, had the effect of making it difficult for any entity touse the land for any purpose. The timberlands of Oregon, forexample, were primarily, if not exclusively, valuable for theirtimber, but lumber operations required a solid body of land inorder to extract timber at a profit. The Southern Pacific longrecognized this fact, as did Harriman's land commissioner,Charles W. Eberlein, who complained that the checkerboardpattern of the railroad's grant made it virtually impossible forthe railroad to dispose of the land, since timberlands could notbe sold in a "piece-meal" fashion.3

"Charles W Eberlein, whom Harriman dispatched to San Francisco to overseethe land departments, later reported that Harriman's control was so tight thatEberlein was required to send all applications for purchase of timberlands toNew York for Harriman to review and decide on a course of action. Transcriptof Record, Supreme Court of the United States, no. 492, October term, 1916,Oregon & California Railway Co. v. United States (hereinafter referred to as"Transcript"), available at The Making of Modern Law: U..S. Supreme CourtRecords and Briefs 2329, 2399, 2746, http://gdc.gale.com.

"U.S. Congress, House Report, 60th Cong., l1 sess., 1908, no. 1301.

"Ellis, "Oregon and California Railroad Land Grant," 260-61.

"Orsi, Sunset Limited, 381; Transcript, 2328.

6 WSENLGLHSOYVL 3 o

Harriman indeed found that the railroad's long-followed,pro-development policy of selling timberlands cheaply onlyencouraged speculation. This was both because the annual risein value of the timber exceeded the taxes and interest pay-ments required to retain the land, thus making it profitablesimply to hold the land, and because there was not much of amarket for the grant's timber, due to its relative inaccessibil-ity as compared to the still-plentiful forests of Washington andCalifornia. Accordingly, only "a very, very small fraction" ofthe timberlands that the Oregon & California sold, includingthose it sold either directly or indirectly to lumber companiessuch as the Booth-Kelly Lumber Company, had been milledeven by 1912. Based on these experiences, Eberlein ultimatelyconcluded that "anybody that comes in and wants to buy allthe timber in [multiple] townships of land [had] no immediateintention of doing anything with it." 14 Rather, the lands weresimply "held for the rise."'6

In 1903, citing the fact that the remaining lands wereprimarily heavily timbered and unsuitable for settlement,Harriman ordered the termination of all timberland sales inlands encompassed by the Oregon & California grant.16 Atthe National Irrigation Congress of 1907, held in Sacramento,California, Harriman justified his decision to withhold thelands from sale based on the need for conservation. He insistedthat his companies were not "holding those lands for specula-tion" but instead were holding them "to protect [the people]in the future." Considering that "ties are the foundation of thetransportation line," he stated his intent "to have a reservewith which we can maintain these great transportation linesfor those that come after, that they may not accuse us of wast-

4Transcript, 2342-44.

"Ibid. As another example of this phenomenon, Eberlein discussed the exampleof T.B. Walker's handling of his timberlands in northeastern California: "Theybought out timber concerns and mills and shut them down and they have ex-isted all this time simply upon the increase in the growth of the timber which,as I have told you, is large enough in timber of certain age to more than equalthe taxes and interest on the investment; and in this particular case it must beremembered that this timber was sold by the Railroad on conditions that neverwere duplicated that I know of in this country." Transcript, 2351-52.

'This policy was not limited to the Oregon & California land grant but ratherapplied to all lands of the Southern Pacific and Central Pacific as well. SeeOrsi, Sunset Limited, 123-25.

6 WESTERN LEGAL HiSTORY VOL. 23. No. 1

ing the resources which we had at our command."7Harriman's1907 speech was consistent with a statement he made to anewspaper reporter that same year:

The Southern Pacific will sell land to settlers, but notto speculators. We can tell a speculator from a settler aswell as anyone. The agricultural land we will sell, but thetimber-land we will retain, because we must have ties andbridge timbers, and we must retain our timber for futuresupply. The Southern Pacific has an insufficient amountof timber now, and we have had to buy large tracts,looking to the future supply of ties and material. Yes, wewill sell to settlers, but speculators will get none.

Harriman's goal, in other words, was to prevent harmful specu-lation and to conserve the timber for future railroad use.

At first glance, Harriman's conservationist justificationseems inconsistent with the dominant brand of conservationrepresented by President Theodore Roosevelt and GiffordPinchot, neither of whom ever advocated massive curtailingof development. Rather they advocated managing forests withthe goal of promoting more efficient and prolonged develop-ment without sacrificing present yield. At the meeting of theAmerican Forestry Congress in 1905, immediately after whichmanagement of forests was transferred to the Department ofAgriculture under the newly renamed Forest Service, Rooseveltassured pro-development westerners that the government'spolicy was "consistent to give to every portion of the publicdomain its highest possible amount of use." 9 Pinchot addedthat "[tihe administration of the forest reserves is based uponthe general principle . . . that the reserves are for use. They

"The Official Proceedings of the 15th National Irrigation Congress, Septem-ber 2-7, 1907, Sacramento, California; also quoted in House Committee onthe Public Lands, Oregon and California Land Grants, 64th Cong., 1" sess.,1916 (hereinafter referred to as the 0 & C Land Grants), 143-44. See W.G.Robbins, "Lumber Production and Community Stability: A View from thePacific Northwest," Journal of Forest History 31:4 (October 1987): 187-96;Wesley C. Ballaine, "The Revested Oregon and California Railroad GrantLands: A Problem in Land Management," Land Economics 29:3 (August 1953):219-32; John Messing, "Public Lands, Politics, and Progressives: The OregonLand Fraud Trials, 1903-1910," Pacific Historical Review 35:1 (February1966): 35-66.

"Transcript, 4267. According to Orsi, this statement may have been a lie, basedon the fact that the initial sale order applied to all lands, and very few sales oc-curred on any lands during Harriman's tenure. See Orsi, Sunset Limited, 124-25.

"American Forestry Association, Proceedings of the American Forest Con-gress, January 2-6, 1905, Washington, D.C. (Washington, DC, 1905), 11.

WRNTER/SPRINc 2010 RAILROADS MUST HAvE TIES 7

must be useful first of all to the people of the neighborhood inwhich they lie."an2 On their face, Harriman's policies appearedto violate this simple rule of conservation.

Assuming that Harriman's no-sale rule thwarted develop-ment, it would indeed seem that his policies contradicted thevery conservationist principles he attempted to evoke. However,it is not at all clear that his policy impacted development at all.As of the time when Harriman issued his no-sale order, therewere not many settlers on the land, even after decades of effortsto attract farmers from the East. Moreover, as the railroad's landcommissioner Eberlein reported, almost all of the lands in thepossession of lumber companies were simply being held, likelybecause of their inaccessibility and distance from markets. Thatthe lack of development was due more to physical and economicgeography than to Harriman's decisions would later be con-firmed by both government reports and the government's ownexperiences once it reacquired the lands in 1916.1

Given these realities, which Harriman and his men appreci-ated long before Congress did, Harriman's termination of landsales can be seen not as anti-development but as a recogni-tion that the market system, in this instance, had failed-andwould likely continue to fail-to promote the rational, efficientuse of the land's natural resources. This rationale was thusconsistent with the conservation movement, which was, aboveall-as Samuel P. Hays has articulated-a scientific movementadvocating that scientists take the lead in determining naturalresource use rather than leaving such questions to political oreconomic forces .22 Harriman was both a benefactor and a con-sumer of the emerging sciences of conservation.

Harriman had already demonstrated his personal support ofthe natural sciences when he arranged and funded a maritimeexpedition to Alaska in 1899. What began as a vacation for himand his family was radically transformed when Harriman con-ceived of inviting an entire community of scientists to exploreand document the coastlines of Alaska. The expedition includedbiologists, botanists, geographers, geologists, and zoologists, aswell as several artists and intellectual writers. Scientists andintellectuals who accepted Harriman's invitation to partici-pate included John A. Muir; C. Hart Merriam, chief of the U.S.

AAmerican Forestry Association, Proceedings of the American Forest Con-gress, 392.

"See Wesley C. Ballaine, "The Revested Oregon and California Railroad GrantLands: A Problem in Land Management," Land Economics 29 (August 1953): 224.2ISamuel P. Hays, Conservation and the Gospel of Efficiency: The ProgressiveConservation Movement, 189- 1920 (Pittsburgh, PA, 1999), 3.

8 WESTERN LEGAL His-roRy Vot.. 23, No. I

Biological Survey; William E. Ritter, president of the CaliforniaAcademy of Sciences; Henry Gannett, chief of the U.S. Coastand Geodetic Survey; George B. Grinnell, editor of Forest andStream; and Bernhard E. Fernow, former chief of the Departmentof Agriculture's Division of Forestry.', In the decade followingtheir time together on what was referred to as the "HarrimanExpedition," Muir and Harriman maintained a regular corre-spondence and formed what environmental historian DonaldWorster has labeled "an improbable bond" based on a "mutualunderstanding ... [of] the value of an efficient railroad systemand on the wisdom of establishing national parks. "24 Worster re-cently argued that, from the expedition until Harriman's death adecade later, Muir saw Harriman "as a well-meaning friend andpotential ally of the conservation movement. "25

Harriman was also a consumer of conservation science. In 1902,he personally applied to the Bureau of Forestry for experts to be dis-patched to Arden House, his 15,000-acre estate in Orange County,New York, to advise him on how to conserve the estate's 8,000acres of dense forest.2 6 On receiving Harriman's request, the bureausent nine men instead of the normal two to develop a workingplan for improving Harriman's timber. The foresters reported beingexcited at the opportunity to use "ingenious methods" for examin-ing the abilities of various species of trees to bear shade, to repro-duce, and to withstand damage from forest fires.27 The nine forestrystudents completed the necessary fieldwork between April 1 andJune 15, during which time they created a forest map of the entiretract and compiled, according to the Department of Agriculture'sannual report, "a careful study of the forest, by which its character,condition, present stand, and future yield were ascertained."2 8

There is also evidence that Harriman was motivated not justby a form of utilitarian conservation but also by a preservation-ist ethos. After visiting Harriman's New York estate, Muir, forone, concluded that Harriman indeed loved the forest and its

'-See "The Harriman Expedition," Los Angeles Times, August 1, 1899.24Donald Worster, A Passion for Nature: The Life of John Muir (New York,2008), 408.

1bid., 362-43.

"In 1898, as head of the Division of Forestry, Pinchot had issued "Circular 21This document offered to assist private landowners to develop plans for forestmanagement and fire protection, provided that the owners paid all expenses.Thomas R. Cox et al., This Well-Wooded Land: Americans and Their Forestsfrom Colonial Times to the Present (Lincoln, NE, 1985).

""To Improve the Harriman Forest," New York Times, April 20, 1902.

"U.S. Department of Agriculture, Annual Reports of the Department ofAgriculture for the Fiscal Year Ended June 30, 1902. Report of the Secretary ofAgriculture, Departmental Reports (Washington, DC, 1902).

WINTER/SPRING 2010 RAILROADS MUST HAVE TIES 9

10 WLST ERN LEUAI Hisro~v VOL. 23, No. 1

Members of the Harriman Expedition and some acquaintancesgather at Dutch Harbor, Alaska, July 1899. (Courtesy of Universityof Washington Libraries, Special Collections. Negative numberHarriman 187)

wildlife and considered it something to cherish and conserve,at least when consistent with economic development. Beyondpreserving his own timbered estate, Harriman's desire to leavecertain places alone was also demonstrated in 1905 when helobbied in support of the Sierra Club's efforts to incorporate theYosemite Valley into the national park that then surrounded it.Later, in his 1907 speech before the National Irrigation Con-gress, he showed an aesthetic concern for the preservation ofOregon's natural beauty. He argued that "Oregon ought to be thecountry's playground. There's a vastness of fine scenery there." 9

Through his words and actions, Harriman was able to convinceMuir of his concern for nature beyond its mere economic value.In spring 1909, when Muir was visiting Harriman and his familyin Pasadena, California, Muir was asked how he, "a nature lover,[could] happen to be visiting a cold-blooded financier." He an-swered, reportedly while fighting back tears, that "Mr. Harrimanhas a heart. People may not know it, but he loves the flowersand the trees. He loves nature and human nature.""

'"Magnate Wins Applause for Funny Speech," Sai Francisco Call, September 5, 1907.

""'Sidetracks All Callers," Los Angeles Times, March 17, 1909.

10 WESTERN LEGAL HiSTORY VOL. 23, NO. I


Importantly, the people of Oregon also took Harriman at hisword. While historians have questioned Harriman's motivesin ordering the termination of land sales, Oregonians believedhis stated rationale, and this is precisely why they became soangered. Harriman's no-sale order and his subsequent explana-tion enraged a wide cross-section of the public, particularlyin the affected localities of Oregon. Encouraged by prominentlumber companies in the state, local residents accused Harrimanof undermining Oregon's development by locking up its naturalresources. While the backlash against Harriman undoubtedly fedoff a populist distrust of railroads as malevolent monopolies thatthreatened to hold local populations hostage to their economicwhims, people also linked Harriman to what they saw as anequally menacing force: the eastern conservation movement. Inthe weeks following his 1907 speech at Sacramento, the Orego-nian accused Harriman of desiring "to make a reserve out ofthe whole of Oregon." In fact, said the paper, "he counts it hisreserve now." 3

"Excerpted in "Mr. Harriman's Apology Not Accepted," San Francisco Call,September 17, 1907.

Architect William H. Holabird, E.H. Harriman, and John Muir (left to right)posed together at Harriman's lodge in Pelican Bay, Oregon. (Courtesy ofJohn Muir Papers, Holt-Atherton Special Collections, University of thePacific Library, MSS04.F25-1386. Copyright 1984 Muir-Hanna Trust)



The Oregonian questioned not just Harriman's motivations,but those of all who purported to be concerned with conserva-tion: "[T]his state is plastered from one end to the other withtimber speculators in syndicates and as individuals. All pretendto be saving for the nation a wood supply. The truth is they arekeeping out settlement and maintaining a wilderness in order atsome future day to gratify their lust for wealth." 2 The Oregonianbelieved that the state needed, above all, "the clearing up of forestland" near the railroads so that it could "be used for agricultureand for sustaining a larger population.", To the people alongthe Oregon & California line, whether Harriman epitomized thespeculator or the conservationist was immaterial, since the con-servationist was merely a new form of speculator. Both were seenas equally threatening to the rapid development of the region.

Based on Harriman's apparent refusal to sell much, if not all,of the remaining land grant, Senator Benjamin R. Tillman ofSouth Carolina introduced, and Congress quickly passed, legisla-tion authorizing the attorney general to institute proceedings forthe forfeiture of the railroad's unsold lands. Attorney GeneralGeorge W. Wickersham complied and filed suit in September1908 against the railroad, one of its creditors, and many indi-viduals and companies who had purchased lands in violation ofthe grant's terms.3 4 Although the no-sale order precipitated thelawsuit, the many sales the railroad made prior to 1903 in viola-tion of the homestead clause served as its legal justification.

,""Mr. Harriman's Apology Not Accepted."

-'Ibid. Historian Roy M. Robbins argues that the West during this time was notanti-conservationist at all but instead was opposed to government interventionbased on the government's past promotion of land theft, including most notablythe Forest Lieu Land Act of 1897. Roy M. Robbins, Our Landed Heritage:The Public Domain, 1776-1936 (Lincoln, NE, 1962), 338-40. Carlos ArnaldoSchwantes, however, insists that western resistance was based on a rational fearthat the conservation ethos, despite Roosevelt's assertions to the contrary, wouldonly serve to tie up resources and inhibit growth. Schwantes, The Pacific North-west: An Interpretive History, rev. and enl. ed. (Lincoln, NE, 1996), 221.

,"In 1912, Congress passed the Forgiveness Act, 37 Stat. 320, which droppedthe government's claims against individuals and companies that had purchasedlarge tracts of land in good faith and without knowledge of the grant's home-stead clause forbidding such sales. This legislation was passed in no small partbecause the lawyers at the Department of Justice had convinced members ofCongress that the individuals who purchased the affected 524,000 acres were"small fry" settlers and were so numerous that litigation would be virtuallyunending, meaning also that the land would be tied up for decades. It was laterrevealed that several of the purchasers were lumber companies and other inter-ests that had purchased tracts in excess of 10,000 acres, and many of these "in-nocent purchasers" had been indicted-and some convicted-in the land fraudtrials of 1905--1907. See 0 & C Land Grants, 203. The Forgiveness Act allowedinnocent purchasers to keep title so long as they paid the government $2.50 peracre, even though some of the land was worth as much as $500 per acre.

VoL. 23, No. 112

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Seeming to contradict the Harriman regime's assessment ofthe grant lands was the fact that, beginning in 1907 and con-tinuing for the entire seven years of litigation, thousands ofindividuals filed applications with the railroad company for thepurchase of quarter sections. In that year, as the political move-ment to force the forfeiture of the land grant gained momen-tum, residents of Oregon began "rushing into the rich timbercountry and gobbling it up." "I This movement apparently wasbased on the government's indications that, once individualsoffered to purchase lands at $2.50 an acre and were refused,they would then have standing to sue the railroad to force suchsales and would "have a pretty good case.",6 The Wall StreetJournal reported "a frenzy of excitement" in Oregon, where"thousands are leaving home and stampeding to the railroadland grants . . . to force Harriman to surrender" the land.3 ByJune 1907, it was reported that "in many counties every quar-ter section of the land held by the railroad has a claimant."as

Although the government later used these claims as evi-dence that the land was indeed capable of being settled underthe homestead clause-contrary to the claims of Harriman andhis railroad-it appears that the vast majority of the applicantsin fact had no intention of homesteading on their claims. In hisextensive overview of the Oregon & California land grant,David Maldwyn Ellis concluded that "these so-called settlerswere speculators or dummies for speculators who hoped tomake good their title to valuable timberlands at a nominalsum."3 9 Indeed, "practically all" of the 14,000 to 15,000 ap-plications to buy land from the railroad company during thistime period, according to Ellis, "were speculative in character,"a fact that was revealed over the next decade as the Departmentof Justice convicted nine professional locators, each representingseveral hundred applicants, for fraud in connection with thesepurported applications for purchase and actual settlement.4

""Ignorant Oregon Farmers," Washington Post, June 4, 1907.3 Ilbid. As it turned out, they did not have a good case; the Supreme Courtultimately dismissed the claims of these prospective purchasers. Based on thefact that the grant did not compel the railroad to sell and did not even define"actual settler," the prospective purchasers did not have any right to enforcethe grant's conditions, according to the Court. Oregon & California RailroadCo., 238 U.S. at 434-35.

,"After Harriman Road's Land," Wall Street Journal, June 5, 1907.

aIbid.

"Ellis, "Oregon and California Railroad Land Grant," 264.40See Ellis, "Oregon and California Railroad Land Grant," 268.


Testimony in the divestiture trial corroborated Harriman'sassessment that the vast majority of the land was unsuitablefor the type of homesteading that Congress had envisionedand the grant required. In fact, in all of his work in the rail-road's land department since he was first employed in 1889,.A. Elliott could not remember a single instance in which

the railroad had sold a quarter section to a person who thenactually made a home and a living on that acreage.41 The sameapparently was true on the even sections within the grant;Homer D. Angell, a surveyor for the railroad and the govern-ment, observed that "lands acquired by homestead from thegovernment on the timbered areas are never occupied for anyappreciable period after title has been acquired."4 2 In manycases, those who attempted to establish homesteads on theselands failed. Elliott noted that the few improvements that hadexisted on these lands in the 1880s had, by the first decade ofthe twentieth century, "grown up to brush.",

Regardless of the wisdom of congressional policy, the fed-eral government at first appeared to have the law on its side.In 1913 the district court ruled in the government's favor bydecreeing the unsold grant lands forfeited and quieting thegovernment's title to such lands. The railroad, however, ap-pealed this decision on several legal grounds, including thatthe homestead clause constituted not a condition subsequentjustifying forfeiture, but rather a set of restrictive and unen-forceable covenants, and alternatively that the government hadwaived its right to enforcement of the provision through itsyears of acquiescence. In delivering the opinion of the SupremeCourt, Justice Joseph McKenna agreed with the railroad thatthe homestead clause lacked the required technical languageto constitute a condition subsequent touching the railroad'sproperty interest, but he also disagreed with the railroad'scontentions that the conditions were unenforceable. He heldinstead that the grant's conditions constituted both contractualcovenants and laws, and thus were strictly enforceable.

As to the appropriate remedy, however, the Court agreedwith the railroad's contention that the land invited "more tospeculation than to settlement."44 It therefore declined to orderthe railroad to sell the remaining lands pursuant to the termsof the grant or merely to enjoin the railroad from violating thegrant any further. Instead, apparently in recognition that the

4!Transcript, 2727.

4Transcript, 2774.

"Transcript, 2727.

"Oregon & California RailroadCo., 238 U.S. at 438.

VOL. 23, No. I14 WESTEPN LEGAL HiSTORY


homestead clause was unworkable as applied to the remaininggrant lands, it enjoined the railroad from "any disposition ofthem whatever or of the timber thereon, and from cutting orauthorizing the cutting or removal of any of the timber there-on," and it directed Congress to provide by legislation for theirdisposition in accordance with such policy as it may deem"fitting under the circumstances."45 In disposing of the lands,Congress was required to secure to the railroad "all the valuethe granting acts conferred upon the railroads."4 '6

In deciding how to dispose of the lands, some in Congressinsisted that the lands were still amenable to the type of settle-ment that Congress originally had contemplated, despite allthe evidence to the contrary. Representative Willis C. Hawleyfrom Oregon, for example, claimed to have received "a largenumber of letters from men . .. stating that there have beenpeople living on these lands, with good houses and good im-provements, who settled on the lands and made their improve-ments in good faith and are living there and have been makinga home for a number of years on the land."4 "All through thegrant," he insisted, "with the exception of comparatively smallareas, there are farms of agricultural lands."4 RepresentativeClifton N. McArthur, also from Oregon, however, disputedHawley's claims. He cited a joint investigation conducted bythe Interior, Justice, and Post Office departments, which foundthat "all but a comparatively small percentage" of the thou-sands of applications for the purchase of land from the railroadwere "secured by so-called locators," and that there were "veryfew, if any, actual settlers on these lands" as of 1916.49

The interests of Oregonians weighed heavily on Congress'deliberations. Immediately after the Supreme Court deliveredits opinion, the governor of Oregon called together delegates inSalem to discuss the matter. The conference attendees resolvedthat Congress should "enact laws defining and settling whoshall be considered actual settlers ... and what shall be con-sidered an actual settlement, and requiring the [railroad] toperform the terms and conditions of the [grant] and to sell anddispose of said lands according to the true intent and purpose of

4'Ibid.

"'Oregon & California Railroad Co., 238 U.S. at 439.

"O & C Land Grants. 187.

"Ibid., 188. Clay Tallman, commissioner of the General Land Office, corrobo-rated Hawley's testimony by estimating that as much as 75 percent of the landwas suitable for settlement and cultivation.

"0) & C Land Grants, 203, 251.


[the grantj."so They also declared their "unalterable" oppositionto the creation or enlargement of any forest reserves in Oregon.They proposed, instead, that Congress provide for the immedi-ate sale of grant lands under the conditions of the homesteadclause, while also protecting the process from fraud." Despitethe appearance of unanimity, however, McArthur contendedthat Oregonians were in fact divided on how the lands shouldbe handled. He cited the fact that, immediately after theconference passed its initial resolutions, it passed a new setof resolutions directing the conference chairman to form acommittee to negotiate a settlement with the Southern Pacificthat could then be presented to Congress, the apparent purposebeing, above all, to avoid a prolonged dispute."

The politicians from Oregon largely followed suit in argu-ing that Congress should provide for actual settlement of thelands. For his part, Senator George Chamberlain, whose billdominated the debate in Congress and ultimately was passed,reported that he realized, after Harriman's speech at the Irriga-tion Congress in 1907, "the importance to the people of theState to have these lands brought under actual settlement bysale or otherwise so as to assist the State in its developmentand in the purposes of government."`5 Although he claimed tobe "nearly alone in the West . . . in defending the policies of theForestry Service" and to have been "one of the original advo-cates of that for the welfare of the people, with Mr. Pinchot,"he argued that no more lands in Oregon, except those that weredeemed necessary to protect water supplies, should be added tothe forest reserves.54 Representative Hawley purported to relayhis constituents' demands "that no part of the lands be placedin the forest reserves; that all of these lands be made availablefor development under proper conditions; that all lands capableof any agricultural use be disposed of for that purpose; that thejust rights of the State and counties of Oregon be recognizedand provided for; that provision be made for the payment ofaccrued taxes; and that all of these lands remain on the taxrolls."56 Finally, Representative McArthur insisted that whatOregonians wanted most were "actual settlers, people who willgo there and make homes in the wilderness ... and build up

'0Ibid, 7.

5'Ibid.

5Ibid., 200.

-Ibid., 144.

ifIbid., 156.

'Ibid., 200.

16 VOL. 23. No. I


communities that will be of material benefit to the develop-ment of the state."S'

A report submitted by the Department of Agriculture, as wellas the testimony of department officials, not only confirmedthe railroad's assessment of the unsuitability of the grant landsfor settlement, but also implicitly vindicated both the railroad'spolicy of selling timberlands in large tracts prior to 1903 and itstermination of land sales after that date. The department con-sidered "some" of the lands to be agricultural, but it determinedthat "most of it was heavily timbered."-" Furthermore, just asthe railroad had found it untenable to sell heavily timberedlands in 160-acre legal subdivisions, the department's reportcriticized any attempt to limit land sales to small legal subdivi-sions as "not consistent with the natural requirements of theindustry." 8 Assistant Forester William B. Greeley testified thatlimiting sales by "any legal subdivision" would "likely lead tomismanagement," and he encouraged Congress to leave it tothe Interior or Agriculture department to make sales "in accor-dance with the topography-normally by watershed-and thenatural logging factors."19 He indicated that even sales in excessof 20,000 acres could be justified. Finally, the Department ofAgriculture confirmed Harriman's contention that there waslittle market for the immediate consumption of timber and thatany purchases of timberlands would be at very low prices andonly for speculative purposes. Based on western Oregon's marketposition, the department reported that "it [was] obvious thatvast quantities of privately owned timber must be held for manydecades before it can be marketed" for consumption. Thus thedepartment recommended holding the lands from sale, except inthe few cases where local mills demanded stumpage, until suchtime-possibly even decades into the future-that the marketconditions changed considerably.6"

661bid., 201.1Ibid., 219. Regarding those timberlands deemed agricultural, AssistantForester William B. Greeley testified that the costs of clearing timber for thepurposes of cultivation-which could be as much as $400 per acre-would be"relatively heavy," the clear insinuation being that such costs would act as aneconomic barrier to such development. 0 & C Land Grants, 240."sIbid., 224.

5'lbid., 242.

'Ibid., 220-22. Of course, representatives from the U.S. Forest Service differedfrom the railroad's policy in one important respect: it pushed for all of thetimberlands to be held in public ownership under the jurisdiction of the For-est Service. Even this, however, was not based on a distrust of the railroad'smotives, but rather on a concern that carrying the lands would be too heavy aburden for any private party. See 0 & C Land Grants, 236-37.


i8WSENLGAsITR OL 3 o

Unfortunately, Congress disregarded many of the observa-tions and recommendations of the Department of Agriculturein its Chamberlain-Ferris Act of 1916. This act revested theremaining grant lands in the federal government and providedfor their sale as well as the disposal of the timber upon them.Rather than providing for the efficient management of theforests pursuant to conservationist principles, as governmentforesters had advised, the act directed the secretary of the inte-rior to sell off the timber to the highest bidder, at which timethe timberlands could be reclassified as agricultural land andopened for settlement. Moreover, Congress disregarded Sec-retary David F. Houston's recommendations that any sales oftimberlands be in large tracts and not according to legal subdi-vision when it instead provided that each legal subdivision beoffered for sale separately before any larger sales were made.Finally, in designating that proceeds from land and timber salesin excess of the amount owed to the railroad would adequatelycompensate the Oregon counties for tax revenues lost as a re-sult of the land's being ordered forfeited in 1913 and ultimatelytransferred to public ownership in 1916, Congress failed toheed the department's advice regarding the lack of an immedi-ate market for standing timber and the extent to which the im-mediate sale of timber would depress its price.6' Sure enough,sales were slow, the system Congress created proved unwork-able, and the counties were on the verge of economic collapsein 1926, when Congress approved a loan to the counties in theamount of lost tax revenues and passed a new formula for dis-tributing the revenues from the lands.

With its 1916 legislation, Congress exchanged a land regimein which the railroad had demonstrated its interest in manag-ing the lands for long-term sustainability for one that perpetu-ated the federal government's nineteenth-century approachto public lands. All of this occurred despite the concernsexpressed by the prior generation over the exhaustibility of the

6 1Chamberlain-Ferris Act of June 9, 1916, U.S. Statutes at Large, 64*, Cong.,11, sess., ch. 137, 39 Star. 218. After the district court's decree of forfeiture onJuly 1, 1913, the railroad stopped paying taxes on unsold lands. Prior to theforfeiture, the railroad had paid a total of $1,820,000 in taxes on the land, muchof which was in recent years due to the increased assessed value of the lands.In his testimony before the congressional committee considering the Oregon& California land grant, government attorney Stephen W. Williams estimatedthat the tax burden had increased tenfold in the previous ten years and that therailroad owed about $1.3 million in unpaid taxes for the previous three years.O & C Land Grants, 6. The Department of Justice's report recommended thatthe government pay the back taxes immediately, not only in fairness to theadversely impacted counties, but also to remove the "cloud upon the Govern-ment's title," which would "embarrass any attempt to dispose of the lands tosettlers." 0 & C Land Grants, 26.

18 WESTERN LEGAL HiSTORY VOL. 23. No. I

nation's natural resources and over the waste and possible ir-reversible damage that resulted (and would continue to result)from the government's promotion of immediate development.

The actions of Harriman and his Oregon & California rail-road were consistent with conservationist principles; Harrimanand other railroad officials repeatedly expressed a concern forguaranteeing a sustainable supply of timber both to guaran-tee a permanent supply for the railroad's operations and tofacilitate the continued prosperity of the region on which therailroad depended. The myth regarding conservation portraysthe battle over control of the natural environment as one pit-ting "the people," as represented by conservationists, against"the interests" represented by industrialists and capitalists.According to this myth, Harriman cannot be considered aconservationist because he was a capitalist who was motivatedby self-interest, namely the continued economic viability of hisrailroad empire, in addition to any concerns he may have heldfor the general public welfare. This case, however, serves as aprime illustration of Samuel P. Hays' influential thesis that theProgressive conservation movement was not, in fact, a crusadeof the people against the trusts, as many Progressives tried toargue.62 Those economic, political, and legal actors supposedlyleast responsive to the needs or demands of "the people"-arailroad tycoon and appointed federal bureaucrats-were thefirst to realize that the lands of the Oregon & California grantshould be managed as forests with an appreciation of the needsof future generations, while the people and their representa-tives in Congress continued to push for the clearing of tim-berlands and the perpetuation of the homestead policy of thenineteenth century.

President Calvin Coolidge would later complain about theland-grant railroads' ability to use the law as an instrument notonly to insulate themselves from prosecution for their supposedsubversions of federal land-grant policies, but also to secureadditional benefits contrary to the interests of the public andthe government in efficiently managing the nation's natural

"Hays, Conservation and the Gospel of Efficiency. See also James L. Penick,Progressive Politics and Conservation: Ballinger-Pinchot Affair (Chicago, 1968)(detailing Ballinger's criticisms of Pinchot's policies as favoring the easterncorporate interests at the expense of western individuals); Louis S. Warren, TheHunter's Game: Poachers and Conservationists in Ttventieth-Century America(New Haven, CT, 1997) (exploring the tensions between local autonomy andnational control in regard to wildlife and the impact of conservation on localinterests); Karl Jacoby, Crimes against Nature: Squatters, Poachers, Thieves,and the Hidden History of American Conservation (Berkeley, CA, 2001)(depicting the national conservation movement as a tool of colonization andstate-building).

wlNTER/SPRING; 2010 RAILROADS MUST 14AVE TIES 19

20 WSENLGLHSOYVL 3 o

resources./ However, the experiences of the Oregon & Californiaduring the first decades of the twentieth century provide a fardifferent narrative. While certainly corroborating Coolidge's la-ment that law had operated to inhibit effective management ofnatural resources, the Oregon & California's experiences show,at least in this important instance, that it was the government,and not the railroad, that used outdated laws as instruments toblock conservationist advances, and it was the railroad, and notthe democratically elected branches of government, that soughtcooperation with the federal bureaucracy to implement manage-ment regimes that would ensure sustainable economic develop-ment, even if at the cost of short-term gains.

That Harriman had a profit motive in seeking to ensure acontinuous supply of timber for the maintenance of his railroadempire should not undermine his conservationist credentials.Indeed, notable conservationists within the federal forestbureaucracy recognized that the movement depended on thewilling participation of business interests. Writing just a yearbefore Harriman's termination of land sales, for example,former chief of the Division of Forestry Bernhard E. Fernowpredicted that wealthy capitalists like Harriman, "who cansee the financial advantages of the future in forest properties,"would quickly become the newest "class" of conservationists.Fernow thus concluded that, aside from being owned by thegovernment, forest resources were most likely to be conservedwhen in "the hands of perpetual corporations and wealthyowners."64 Other conservationists, including Pinchot, recog-nized that their movement would succeed only when privatecommercial entities appreciated the extent to which theircontinued prosperity depended on the rational managementof natural resources.65 As Roosevelt asserted at the AmericanForest Congress in 1905, the conservation movement-as wellas America's continued economic growth-would depend noton philanthropists or the general public, but on "the men whoare actively interested in the use of the forest in one way oranother."6 6 Harriman agreed with Roosevelt's assessment that"the railroads must have ties," and thus he was among the firstto answer the conservationists' call.

"U.S. House Report 512, Northern Pacific Land Grants, 68th Cong., P sess., 1-2.

6'Bernhard E. Fernow, Economics of Forestry: A Reference Book for Students ofPolitical Economy and Professional and Lay Students of Forestry (New York,19021, 345-46.

'0American Forestry Association, Proceedings of the American Forest Con-gress, 390-93.

Ibid.. 6--8.

20 WESTERN LEGAL HiSTORY VOL, 23. No. 1

THE COLDEST CASE OF ALL?LLOYD GAINES AND THE

AFRICAN AMERICAN STRUGGLE FOR

HIGHER EDUCATION IN MISSOURI

SARAH RIVA

O n a cold, rainy evening in March 1939, LloydGaines stepped out of a fraternity house in Chicago's SouthSide on his way to buy postage stamps. He was never seenagain. To this day the whereabouts of Gaines remain unknown.In 2007, the National Association for the Advancement ofColored People (NAACP) asked the FBI to reopen their files onGaines as part of their Civil Rights Cold Case Initiative. Thisrequest was denied; in fact, it appears that the FBI actuallyhad destroyed Gaines' files in 1996, despite the fact that hismysterious disappearance has never been solved.

The Cold Case Initiative, in the main, has been the FBI'sattempt to solve the murder of African Americans during thecivil rights era, but it does not appear to have looked into miss-ing persons. It seems unlikely that the fate of Gaines, whosehigher education case was one of the most significant episodesin the NAACP's early legal struggle for civil rights, will everbe known. Nevertheless, Gaines' story and the legacy of hiscourt case and bravery in taking on the University of Missourifor an equal graduate education remain an important, yet toooften marginalized, part of the history of the modern AfricanAmerican freedom struggle. As we approach the one-hundredthanniversary of his birth in 2011, this essay revisits Gaines' life,lawsuit, and disappearance.

Sarah Riva completed her undergraduate degree in history atRoyal Holloway, University of London, in 2010. She will begingraduate studies in public history in 2011 at the University ofArkansas-Little Rock, where she hopes to continue her researchin the early civil rights era. This essay was named the first runner-up for the 2010 Jerome I. Braun Prize in Western Legal History.

"How mSTORICAL AND SOCIALLY IMPORTANT THE CASE"'

In 1935, Lloyd Lionel Gaines attempted to become the firstAfrican American student to enter the University of Missouri.The state was in many ways an ideal place for such an attemptsince, as a border state lying north of the Mason-Dixon Line-the historical division between the free North and the slaveSouth-it appeared to have less invested in the continuance ofsegregation than Lower South states with much larger AfricanAmerican populations.

Missouri was a slave state until 1865, but it fought on theside of the Union during the Civil War. The "peculiar institu-tion" of slavery was even stranger in Missouri.' Small farmswere more common than plantations, and slaves were often do-mestics. The practice of hiring out slaves was fairly common.As in the rest of the South, education for African Americanswas not encouraged.3 In fact, formal education was not a prior-ity for many white Missourians either, especially if it meantbeing taxed to send children to school. That changed after theCivil War, when the Missouri Constitution, formally adoptedby the state in 1875 under the Democratic Party, introducedthe idea of free education for its children. It also contained arequirement to separate the races in education.'

On May 18, 1896, the U.S. Supreme Court handed down alandmark ruling that would affect African Americans for thefollowing fifty years. Plessy v. Ferguson tested the SupremeCourt's understanding of the Fourteenth Amendment's dueprocess and equal protection clauses, which were supposed toensure that all U.S. citizens were treated equally regardlessof race. Homer Plessy, one-eighth African American, unsuc-cessfully tried to fight a Louisiana law that separated theraces during interstate travel. Plessy purchased a first-classticket for a train from New Orleans and sat in the first-classcarriage, intended for whites only. Plessy was arrested whenhe refused to move to the "colored" carriage of the train, butthe lower courts dismissed his claim that he was denied hisFourteenth Amendment rights. On appeal to the U.S. Supreme

Lloyd Gaines to Callie Gaines, 3 March 1939, http://digitaLlibrary.umsystem.edu/cgi/t/text/text-idxsid=734b91f5ca3feabce7al6b7d89d37599;g=;c-gnp;idno=gnppiO02.

Eric Foner, Give Me Liberty! An American History (New York, 2006), 345.

'Robert Irving Brigham, "The Education of the Negro in Missouri" (Ph.D. dis-sertation, University of Missouri, 1946), 64-66.4 Missouri Constitution, 1875, Article II, section 3.

VOL. 23, No. I22 WESTERN LEGAL HiSTORY

W1NTrR/SPRING 2010 Tat: COLDEST CAsE 23

Lloyd Lionel Gaines, above, attempted to become the first AfricanAmerican student to enter the University of Missouri. (Courtesy ofthe University of Missouri Law Library)

WIN-rER/SPRIN(; 2010 THF. COLDFST CASE 23


Court, the justices voted seven to one in favor of Ferguson (thejudge presiding over the case in the criminal district court inNew Orleans), claiming that the Fourteenth Amendment wasnot clear about which rights it was supposed to protect. TheCourt claimed that the Fourteenth Amendment had not been"intended to abolish distinctions based upon color" and thatLouisiana's law requiring the separation of races was not "abadge of inferiority" for African Americans, even if that washow African Americans interpreted the law.' It was from thisSupreme Court decision that the legal doctrine of "separate butequal" arose, which held that "separate" facilities for the raceswere constitutional under the Fourteenth Amendment provid-ed that they were of "equal" standard. Although in many casesseparate facilities provided for African Americans by the stateswere often far from equal, the judicial pretense continued forthe next fifty-eight years.

Lloyd Lionel Gaines was the youngest of eleven children bornto Henry and Callie Gaines, a respectable tenant farming fam-ily, in Lafayette County, northern Mississippi, in 1911. By thetime Gaines reached four years old, only seven of his siblingssurvived, and Lloyd's father had also died.6 Gaines began hiseducation in rural Mississippi in what he described as a "one-room framed building, too well ventilated by cracks, and poorlyheated by a single stove placed in the center of a circle of woodenbenches."' Gaines had completed the sixth grade when, in1926, he and his family moved to St. Louis, Missouri, where hewas put back into the fifth grade "[a]s a matter of policy.",

Gaines excelled in school and completed grades five througheight in just two years at Waring and Lincoln elementaryschools, followed by a four-year high school course in threeyears at Vashon High School in St. Louis.' He then spent oneyear at Stowe Teachers College before beginning his under-graduate education in 1933. He attended Lincoln University,the African American equivalent of the University of Missouri,studying a variety of subjects, including English, mathematics,

5Plessy v Ferguson, 163 U.S. 537 (1896).6 Lloyd Lionel Gaines, Papers of the NAACP, part 3: The Campaign for Edu-cational Equality, Legal Department and Central Office Records, 1913-1950,series A, Legal Department and Central Office Records, 1913-1940, reel 14,frames 0377-81 (microfilm, Royal Holloway, University of London).

Ibid.

'Ibid., frame 0378.

'Ibid., frame 0379.

VoL. 23, No. 124

history, economics, and government studies.10 He won numer-ous scholarships and awards throughout his education, includ-ing an alumni award from Vashon High School, the StoweCollege University Club Award, and a Curators' ScholarshipAward at Lincoln.'I

Lincoln University had been established in 1921 when theMissouri legislature passed the Lincoln University Act toexpand what was then Lincoln Institute, to bring it up to thesame standards as the University of Missouri. As part of thisact, Lincoln had its own board of curators, the ability to ad-minister out-of-state scholarships, and the power to establishgraduate schools when the board deemed it necessary.1 2 Out-of -state scholarships enabled African American students inMissouri who wanted to study in a graduate program that wasnot offered at Lincoln to go to one of the neighboring statesthat admitted African Americans to its graduate programs.The state of Missouri paid the tuition fees. Although this wassupposed to be only a temporary measure, these scholarshipseffectively enabled Missouri to evade the expansion of graduateprograms at Lincoln University for many years. Other southernand border states likewise offered out-of-state scholarships asa means to keep their universities segregated. According to histestimony in depositions for the Circuit Court of Boone County,Gaines had decided on law as his preferred career in 1930,while still in high school." Gaines researched the standards ofthe law schools in Illinois and Iowa, where his tuition wouldbe paid by Missouri, but he decided that it was the Universityof Missouri that had the best reputation and that would givehim the best standing to practice law in Missouri.4

Gaines completed his undergraduate education at LincolnUniversity in 1935 as an honor student and president of hisclass." In June of that year, he applied to the University of Mis-

"Lincoln University Transcript, NAACP Papers, part 3, series A, reel 14,frames 0322-23,

"Biography of Lloyd Lionel Gaines, NAACP Papers, part 3, series A, reel 14,frame 0330; Lucile H. Bluford, "The Lloyd Gaines Story," Journal of Educa-tional Sociology 32:6, "Southern Higher Education Since the Gaines Decision:A Twenty Year Review" (February 1959): 242.

"Laws of Missouri, 1921.

"Circuit Court of Boone County: Deposition on Behalf of Respondents, NAACPPapers, part 3, series A, reel 14, frame 0459.

"Ibid., frames 0491-0500.

"Official Transcript of the Record of Lloyd Lionel Gaines, NAACP Papers, part 3,series A, reel 14, frames 0321-22, and Daniel T. Kelleher, "The Case of LloydLionel Gaines: The Demise of Separate but Equal Doctrine," The Journal ofNegro History 56:4 (October 1971): 263.

WINTER/SPRING 2010 THF COLDEST CASE 25

26 WESTERN LEGAL HISTORY VOL. 23, No. 1

Lloyd Gaines graduated from Lincoln University in Jefferson City,Missouri, in 1935, as an honor student and president of his under-graduate class. Shown above is Memorial Hall, Lincoln University.(Courtesy of Lincoln University Archives)

souri Law School in Columbia. Various accounts exist of howand when the NAACP first became involved in Gaines' case.According to the NAACP papers, the first contact betweenGaines and Charles Houston, special counsel to the NAACP,was August 27, 1935. This differs from Gaines' depositiontestimony, in which he states that his first contact with theNAACP was in late September 1935. Both accounts conflictwith a 1970 interview with African American attorney SidneyRedmond, a St. Louis NAACP lawyer who served as presidentof the city's NAACP branch. Redmond stated that Gaines hadnot yet applied to the University of Missouri when he firstentered Redmond's office seeking assistance.'6 Whether theNAACP was coaching Gaines to become a plaintiff may neverbe known, but from his excellent scholastic record, it seems

"Sidney Redmond to Charles Houston, 27 August 1935, NAACP Papers, part 3,series A, reel 14, frame 0299; Circuit Court of Boone County: Deposition onBehalf of Respondents, NAACP Papers, part 3, series A, reel 14, frame 0451,and "Interview with Sidney Redmond, July 6, 1970," Western Historical Manu-script Collection, http://www.umsl.edu/~whmc/guides/t025.htm.

26 WESTERN LEGAL HiSTORY VOL. 23, No. 1

likely that he was a genuinely qualified, able, and well-suitedcandidate to study law.

In his attempt to attend the University of Missouri's lawschool, Gaines wrote to the university's registrar, S.W. Canada,who dealt with admissions, on numerous occasions in June,July, and August 1935. To be admitted to law school, Gaineshad to send transcripts from an accredited university to verifyhis grades. However, Lincoln University was not accredited.17

When Canada received Gaines' transcripts from Lincoln, hesent a letter in September 1935 telling Gaines that his requesthad been forwarded to the president of Lincoln University for"possible arrangements" to be made there.'I Canada was refer-ring to the out-of-state scholarships offered to African Americanstudents who wanted to study courses not offered at Lincoln.

The NAACP initiated a mandamus proceeding against theUniversity of Missouri in January 1936, asking the Boone CountyCourt to order the university's registrar and board of curatorsto consider Gaines' application, which had lain on their desksfor the past five months.9 Canada formally rejected Gaines'application on March 30, 1936, and the first writ of mandamuswas dismissed on April 15.20 However, Judge Walter Dinwiddie,who oversaw the case for the court, allowed an alternative writof mandamus to be filed against the University of Missourito require the university to either admit Gaines, since he hadbeen rejected solely on the basis of his race, or to prove thatit would be illegal under state and federal law to admit him.2 1

This was the official beginning of the Missouri exrel. Gaines v.Canada case, which would end up being decided in front of theU.S. Supreme Court.2

In May 1936, the depositions of Gaines and three otherAfrican Americans were taken. In addition to Gaines, therewas Arnett G. Lindsay, a businessman in Jefferson, Missouri,who had applied to the University of Missouri to study law in1931 and did so again in December 1935 after Gaines' attempt;

"Circuit Court of Boone County: Deposition on Behalf of Respondents,NAACP Papers, frame 0457.

"Ibid., frames 0476-80.

"Circuit Court of Boone County: Petition for Mandamus, January 23, 1936,NAACP Papers, part 3, series A, reel 24, frames 0807-13.

2'Official Notice of Board Action, March 30, 1936, and New Suit Filed AgainstUniversity of Missouri to Aid Negro Applicant, NAACP Papers, part 3, series A,reel 14, frames 0028-29.

"Stipulation for Dismissal of First Petition, and Order for Alternative Writ ofMandamus, NAACP Papers, part 3, series A, reel 24, frames 0814-17.2Missouri ex rel. Gaines v Canada, 305 U.S. 337 (1938).

WINTER/SPRING; 2010 THE COLDEST CASE 27


John A. Boyd, a graduate of Lincoln who applied to the Uni-versity of Missouri in December 1935 to study mathematics;and Nathaniel A. Sweets, a business manager for the St. LouisAmerican newspaper, who wished to study journalism at theUniversity of Missouri and inquired about admission there inDecember 1935.13

William Hogsett, the lead lawyer for the University of Missouri,sought to demonstrate that Lincoln University was the onlyfacility available to African Americans in the state becausethe University of Missouri was prohibited by state law fromaccepting African American students. Hogsett also attemptedto show that it was the duty of Lincoln to provide Gaines withthe education that he desired under Missouri law, section 9622of the Revised Statutes of 1929. This statute reinforced theLincoln University Act of 1921, which stated that the boardof curators at Lincoln University had the power to send itsstudents to universities of adjacent states in order for them tostudy courses that Lincoln did not offer.2 4 It was clear from thedeposition of J.D. Elliff, president of the board of curators atLincoln, that there were not enough funds to expand graduatefacilities at Lincoln. In practice, the out-of-state scholarshipsarrangement was the only real alternative to admission to theUniversity of Missouri law school.2 NAACP lawyer SidneyRedmond's rebuttal was that it was a constitutional right ofGaines to be admitted to the law school at the University ofMissouri because there was no separate alternative for him toattend in the state, and out-of-state scholarships were inad-equate to meet the needs of the African American populationof Missouri.2 6

As expected, in July 1936 Judge Dinwiddie denied Gainesthe writ of mandamus and a motion for a new trial within thesame court. Nevertheless, Gaines was permitted to appeal hiscase to the Supreme Court of Missouri .2 In the time betweenthe case's being decided in the county court in July 1936 and inthe Supreme Court of Missouri in December 1937, Gaines read

'Circuit Court of Boone County: Deposition on Behalf of Respondents,NAACP Papers, frames 0538-63.24Lincoln University Act, Missouri Laws of 1921, 86-87, and Revised Statutesof Missouri, 1929.25Bill of Exceptions, NAACP Papers, part 3, series A, reel 14, frames 0662-72.26Circuit Court of Boone County: Depositions on Behalf of Respondents,NAACP Papers, part 3, series A, reel 14, frames 0466-67, 0471, 0478-80,0483-84, 486.

"Circuit Court of Boone County, June Term, 1936: Conclusions of Law, & Motionfor a New Trial, NAACP Papers, part 3, series A, reel 14, frames 0718-22.

VOL. 28, No. 128

economics at the master's level at the University of Michiganto "broaden [his] pre legal training."2 Unbeknownst to Gaines,the NAACP paid his tuition fees at Michigan for his master'sdegree, but Walter White, secretary of the NAACP, told Gainesthat it was "a friend" who gave him the loan, claiming that itwas not the "purpose" of the NAACP to provide scholarships.29

This was because the NAACP could not appear to be payingGaines in any way, as this might have been used in court todiscredit him and the association by inferring that Gaines as aplaintiff was on the payroll.

The Missouri Supreme Court heard the Gaines case inSeptember 1937. In December 1937, it affirmed the judgment ofJudge Dinwiddie by again denying Gaines admission to Mis-souri's law school.3 0 The court based its decision on a numberof factors. First, state law prohibited integrated education.Second, the Lincoln University Act of 1921 established Lin-coln as the higher education facility for African Americansin Missouri. Third, the provision of out-of-state scholarshipscomplied with the established Plessy v. Ferguson (1896) legaldoctrine of "separate but equal." Finally, the court said, sinceGaines had not applied to Lincoln University, that universitydid not know of a demand for, and therefore had not been giventhe opportunity to provide, a "separate but equal" law school.3 1

The court declined to rule on whether Lincoln University andthe University of Missouri were in fact equal, in part becauseLincoln was still establishing itself as a university, and theout-of-state scholarships were purportedly only a temporarymeasure, pending the full development of graduate facilities.

"AN EPOCH-MAKING DECISION"32

On December 18, 1937, nine days after the Missouri SupremeCourt denied a writ of mandamus, NAACP lawyers appealedthe decision and requested a rehearing, which eventually was

"Lloyd Gaines to Charles Houston, 5 August 1936, NAACP Papers, part 3,series A, reel 14, frame 0747.

"Walter White to Lloyd Gaines, 8 September 1936, NAACP Papers, part 3,series A, reel 14, frame 0780; and Walter White to Lloyd Gaines, 10 September1936, NAACP Papers, part 3, series A, reel 14, frames 0749 and 0753.

'Supreme Court of Missouri, opinion, December 9, 1937, NAACP Papers, part 3,series A, reel 3, frames 0042-57.

"a bid.3 2Oswald Garrison Villard, "Issues and Men,"' Nation, December 24, 1938.

WINTER/SPRING 2010 THE COLDEST CASE 29

denied by the court?3 Houston and Redmond spent the fol-lowing months preparing the petition to appeal Gaines to theU.S. Supreme Court. The lawyers focused their arguments onthe federal issue involved. They argued that the University ofMissouri had denied Gaines his constitutional right of equalprotection of the law as guaranteed by the Fourteenth Amend-ment when it had denied him admission and claimed that itwas the duty of Lincoln to provide his out-of-state tuition.3 4

The NAACP submitted the petition on May 24, 1938. Never-theless, it was uncertain that the Supreme Court would heara case in which a favorable decision could have such a wide-reaching impact, not only on education but also on the federalgovernment in relation to states' rights.35 Almost five monthselapsed before the petition for appeal was granted by the U.S.Supreme Court on October 10; oral arguments were heard onNovember 936

The justices handed down their decision on December 12,1938. In a six-to-two split, the Court ruled in favor of Gaines.Chief Justice Charles Evans Hughes wrote the majority opin-ion for the Court, in which he declared that the lack of a lawschool for African Americans in Missouri was a denial of theequal protection clause of the Fourteenth Amendment. Hughesbased this argument on the premise that "a privilege has beencreated for white law students which is denied to Negroesby reason of their race." The Court outlawed the use of out-of -state scholarships as a remedy for this. Hughes concludedby stating that the Supreme Court of Missouri's decision wasreversed, noting that Gaines was "entitled" to attend the Uni-versity of Missouri due to the absence of any other equivalentinstitution for African Americans within the state.3

1

Justice James C. McReynolds and Justice Pierce Butler wrotedissenting opinions. Justice McReynolds contended that educa-tion was a state matter and that the federal government shouldnot involve itself in such issues except in extreme circumstances.McReynolds stated his fear that the Supreme Court decisioncould result in Missouri's "abandonling]" the law school at the

'Appellant's Motion for a Re-Hearing and Suggestions in Support Thereof,NAACP Papers, part 3, series A, reel 24, frames 1018-22, and Motion to StayMandate, Papers of the NAACP, part 3, series A, reel 24, frame 0029.3 4Petition for Certiorari, NAACP Papers, part 3, series A, reel 24, frames 1130-52.

"Osmond K. Fraenkel to Charles Houston, July 13, 1938, NAACP Papers, part 3,series A, reel 14, frame 0994.

. 6John R. Howard, The Shifting Wind: The Supreme Court and Civil Rightsfrom Reconstruction to Brown (New York, 1999), 261.3 7Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).

30 VOL. 23. No. I

WINTER/SPRING 2010 THE COLDEST CASE

University of Missouri or, even worse, integrating its schools,which might "damnify both races."'

The divided nature of the Supreme Court reflected nationalsentiment regarding African American equal opportunitieswithin education. In an article written shortly after the Gainesdecision, Leon A. Ransom, a lawyer and a professor at HowardUniversity, noted that "few of the comments [from southernstates] indicate a spirit of hostility" toward the ruling but thatmost legislatures were looking for ways to avoid the actualintegration of their universities?9 Moreover, Ransom pointedout that the case tested the justices' interpretation of theFourteenth Amendment and specifically the Plessy doctrine of"separate but equal." The Court had to decide what equal pro-tection actually meant and, more specifically, whether Plessysaid that it was the duty of the individual state to provide equalfacilities or if that duty could be passed over to another state.Ultimately, the Court decided that it was the duty of eachindividual state to ensure that equal graduate facilities wereprovided for both races.

The Supreme Court decision held potentially far-reachingimplications for the entire South. Not one southern stateprovided graduate education facilities for African Americans.Technically, now all state universities could be in breach of theGaines decision. The day after the ruling, NAACP executivesecretary Walter White issued a statement in which he said theNAACP was "delighted" with the decision, and he discussedthe organization's aims in their continuing battle for equal edu-cational opportunities for African Americans.4 0 The same day,the New York Times reported the Supreme Court decision onits front page, including a statement by Charles Houston, whosaid the decision "completely knocked out" the use of out-of-state scholarships in the border and southern states.4 1

On December 30, 1938, the University of Missouri askedthe U.S. Supreme Court to reconsider its decision on economicgrounds. The university's lawyers claimed that the ruling leftMissouri with only the options of either closing its universitiesto prevent integration or paying vast sums to create AfricanAmerican graduate schools that were substantially equal to the

"Ibid."Leon A. Ransom, "Education and the Law: Aftermath of the Gaines Deci-sion," The Journal of Negro Education 8:2 (April 1939): 244-46.

"Statement By Walter White, December 13, 1938, NAACP Papers, part 3,series A, reel 24, frames 1055-56.

""Court Backs Negro on Full Education," New York Times, December 13, 1938.

31

32 WESrERN LEGAL HISTORY Vor. 23, No. 1

Charles H. Houston, above, served as special counsel to the NAACPin the Gaines case. (Courtesy of the Library of Congress)

32 WESIERN LEGAi- HiSTORY Vot- 23, No. I


white professional schools.4 2 On January 3, 1939, the SupremeCourt refused to rehear the case. The state legislature thenbegan to formulate plans to evade the decision." In early Febru-ary, John Taylor, a member of the Missouri General Assemblyand chairman of the House Appropriations Committee, intro-duced a bill to amend the Lincoln University Act of 1921. Thebill proposed to give power to the board of curators at Lincolnto "reorganize" the university to provide equal educationalopportunities to those at the University of Missouri.44 HouseBill 195 (known as the Taylor Bill) passed the state senate onApril 19 and was signed into law by Governor Stark on May 4.*4The bill not only gave power to the board of curators to enlargeLincoln, but it also appropriated $200,000 toward the expan-sion of necessary buildings, which in turn was intended tofacilitate the development of available courses. The maneuverwas the legislature's attempt to evade the Gaines ruling whilestill remaining within the boundaries of the law. The bill waspassed before Gaines returned to the state supreme court. Thismeant that the University of Missouri could use the Taylor Billto demonstrate that Lincoln would indeed have a separate butequal law school before the beginning of the following academicyear, and that therefore Gaines would not need to be admittedto the University of Missouri law school.4 6

The Supreme Court of Missouri heard the Gaines case onMay 22, 1939, and Judge J. A. Leedy remanded it back to thecounty court of Boone in August. Judge Leedy noted that sincethe U.S. Supreme Court's decision, the Missouri legislature hadenacted the Taylor Bill. A resolution had subsequently beenpassed by Lincoln's board of curators to establish a law schoolby September 1, 1939. The case was sent back to Boone Coun-ty Court to assess the actual degree of equality between thelaw schools at Missouri and Lincoln. If the lower court foundthat the two schools were not substantially equal, the Univer-

41"University of Missouri Asks United States Supreme Court to ReconsiderGaines Case," Columbia Evening Missourian, December 30, 1938.

""Court Refuses to Reconsider Gaines Case," Columbia Evening Missourian,January 3, 1939.4 "Bill Proposed Reorganization of Lincoln University to Meet Supreme CourtRuling," The Kansas City Star, February 3, 1939.

45"Lincoln U. Expansion Bill Sent to Stark," St. Louis Post-Dispatch, April 19,1939, and "Lincoln U. Equality Bill Signed By Stark," St. Louis Globe Demo-crat, May 4, 1939.

"'Larry Grothaus, "'The Inevitable Mr. Gaines': The Long Struggle to Deseg-regate the University of Missouri, 1936-1950," Arizona and the West 26:1(Spring 1984): 26.

33

sity of Missouri would be forced to accept Gaines' applicationfor admission."

Missouri's African American population disapproved of thestate's actions in trying to defy the Supreme Court decision.Many believed that it was not financially viable to spend lim-ited resources on keeping just a few African American studentsfrom attending the University of Missouri.', Nathan Young,editor of the African American newspaper the St. Louis Ameri-can, wrote a letter to Walter White in which he called the pro-visional Lincoln Law School a "paper school." Young claimedthat the money appropriated by the Missouri legislature wassimply being used to quiet protest in the African Americancommunity rather than going directly to expanding Lincoln asit was supposed to.49 An editorial in New York's AmsterdamNews attacked the creation of a "mushroom" law school atLincoln as violating the U.S. Constitution because it could notpossibly match the University of Missouri Law School. More-over, the editorial pointed out that if the "separate but equal"law school were approved by the local courts, it would under-mine Gaines, because presumably other southern states wouldquickly follow suit and create only a fagade of equal highereducation facilities. 0 The final decision in the Gaines case wasthus highly anticipated, since it would set the pattern for whatwould happen across the South in higher education.

Depositions were taken on October 10, 1939, to assess whetherthe new law school at Lincoln was equal to that of the Univer-sity of Missouri. As William Taylor, the newly appointed deanof the law school, testified, the school was not at the JeffersonCity campus of Lincoln University but in St. Louis. This meantthat its students did not have the advantage of ready accessto the state supreme court's library in Jefferson City. Nor didthey, being separated from the main campus, feel as if theywere integrated into the wider university. William Taylor (whohad previously been dean of the law school at Howard Univer-sity) gave the most in-depth deposition, in which his educationand experience were discussed, as were the size and adequacyof the law school building. Nineteen students were attendingthe law school, all in their first year, with four members ofacademic staff, only one of whom had any significant teaching

17Missouri Supreme Court: Opinion at Rehearing, NAACP Papers, part 3, series A,

reel 15, frames 0097-0102.

"Sawyer, "The Gaines Case," 287-88.

'9N.B. Young, Jr. to Walter White, 31 August 1939, NAACP Papers, part 3,series A, reel 15, frames 0217-19.

o"Evading the Law," The Amsterdam News, September 9, 1939.

34 WESTERN LEGAi- HISTORY VOL. 23. No. I

experience." Charles Houston sought to use the deposition toprove that the new law school was in no way equal to that ofthe University of Missouri, pressing Judge Dinwiddie to orderthe university to admit Gaines to its law school. However, onthe second day of depositions, in a dramatic and wholly un-expected development, Houston informed the judge that theplaintiff, Lloyd Gaines, was missing.52

"I WISH I WERE JUST A PLAIN, ORDINARY MAN

WHOSE NAME NO ONE RECOGNIZED""5

After the Supreme Court decision in December 1938, it hadbeen of little necessity for the NAACP to be in regular contactwith Lloyd Gaines. There was a lapse of seven months betweenhis last known movements and the NAACP's realization thathe had disappeared. Once the NAACP discovered that Gaineswas missing, it advertised in local and national newspapersin a vain attempt to find him. The circumstances of Gaines'disappearance have been contested ever since, and a variety ofconflicting accounts and interpretations have emerged.

Professor John R. Howard, in his monograph on the role ofthe Supreme Court in civil rights, claims that Gaines wentmissing in July 1938. Howard bases this evidence on theNAACP papers, which contain a letter from Sidney Redmond,the local NAACP lawyer, to Charles Houston, stating thatGaines' family had not heard from him in a month and thathis brother believed he had been kidnapped.6 While Howard'sassessment of Gaines is the most detailed overview of the casein a survey of the early civil rights era, there is evidence toprove that Gaines actually went missing about a year later thanHoward suggests.

The last known moments before Gaines' disappearance weredocumented by Lucile Bluford, an African American journal-ist who was an editor of the Kansas City Call and who knewGaines personally. According to an article she wrote twentyyears after Gaines' disappearance, Gaines had spoken at a local

"Depositions of Witnesses, NAACP Papers, part 3, series A, reel 24, frames1047-1116.

"Kelleher, "The Case of Lloyd Lionel Gaines," 268.

"'Lloyd Gaines to Callie Gaines, 3 March 1939.

"Howard, The Shifting Wind, 262.

"Redmond to Houston, 13 July 1938, NAACP Papers, part 3, series A, reel 14,frame 0987.


NAACP meeting on April 27, 1939, in Kansas City and hadleft for Chicago the next day, with the intention of staying justa few days. Bluford claims to have accompanied him to thetrain station and watched him board the train to Chicago.6

However, the dates do not match up with dates presented byothers who claim that Gaines actually disappeared in March,one month earlier. It is possible that Bluford simply remem-bered the chronology of events incorrectly and that she actu-ally meant February 1939, but even this does not match withGaines' own account of when he left Kansas City.

The Lloyd L. Gaines Digital Collection on the Universityof Missouri's website contains a number of letters betweenGaines and his family throughout his involvement with theNAACP case."7 It contains the last known letter written tohis mother, Callie Gaines, on March 3, 1939, from Chicago.In the letter, Gaines explains that he left his job in St. Louisbecause there were "illegal tricks of the trade being practiced"(he worked at a gas station that was selling poor quality gas atinflated rates), and the job was too demanding, so he movedto Chicago in search of work. Gaines also mentions his timein Kansas City, where he talked at meetings and a school as-sembly, but, since he could not find any paid work, he traveledto Chicago late Monday, February 27. In the letter, Gaineswrites that he had paid for a room at the Y.M.C.A until March 7and that if he still had not found a job he would "make otherarrangements." He told his mother not to worry if he did notcontact her for a while. The letter is very melancholic in tone.Gaines mentions the ongoing litigation and that he was stillreceiving recognition for the case from African Americans whobelieved it was a "great and noble . .. idea." But those people,Gaines writes, did not understand that the case was still beingprocessed and that he had yet to be admitted to the Universityof Missouri. He told his mother that he wished he were notstill fighting the case and that he yearned to be "just a plain,ordinary man" again.51 The letter lends much to the theorythat Gaines simply chose to disappear to avoid the case and thesurrounding publicity that came with it.

In a recent essay, Douglas 0. Linder, professor of law at theUniversity of Missouri-Kansas City, elaborates on the detailsof Gaines' time in Chicago. Once he had run out of money andcould no longer stay at the Y.M.C.A., Gaines moved in with

6Lucile H. Bluford, "The Lloyd Gaines Story," 246.

"Lloyd L. Gaines Digital Collection, http://digital.library.umsystem.edu/cgi/t/text/text-idx?page=home;c=gnp.

"Lloyd Gaines to Callie Gaines, 3 March 1939.

36 WESTERN LEGAL HISTORY VoL. 23. No. 1

fraternity brothers of Alpha Phi Alpha. A friend of Gaines claimsthat he said he "might not go to law school at the University ofMissouri." Gaines' mother, Callie Gaines, apparently backs upthis idea, stating that she did not believe her son ever "intendedto go there." According to Linder, sometime after the last knownletter from Gaines, he in fact sent a postcard to his mother thatsaid, "Goodbye, if you don't hear from me anymore, you'll knowI'll be alright." Shortly after, he left the fraternity house to buystamps and was never seen again." This appears to be the mostconcise analysis of Gaines' last moments but sheds preciouslittle light on why he actually disappeared.

Another theory has been put forward by Sidney Redmondwho, in a 1970 interview, stated that he had "heard reports"of "a certain editor in Missouri" who had paid Gaines to moveto Mexico in order to end the litigation.60 In January 1940,Redmond wrote to Walter White with information that LucileBluford had given him regarding the possible whereabouts ofGaines. According to Bluford, a student at Lincoln's law schoolhad received a postcard from Mexico, purportedly writtenand sent by Lloyd Gaines, who, the student claimed, had saidhe was "having a jolly time on the [tiwo thousand dollars hehad been given to leave the country."6 1 Although the studentnever managed to produce the postcard for inspection, White(according to Douglas 0. Linder) seemed fairly convinced thatGaines could have gone to Mexico. Indeed, the NAACP lookedinto the Mexico theory and, "through friends" there, heardthat Gaines had "been seen . . . and had an ample supply ofmoney."6 2 But Gaines was never actually tracked down. Othertheories regarding his disappearance have included stories thathe was murdered by extreme segregationists or the Ku KluxKlan, that he was lynched (by any number of possible suspects),and that he was teaching in New York. 63

According to journalist Chad Garrison of the River FrontTimes, the FBI never opened a case on Gaines' disappearance,

5 Douglas 0. Linder, Before Brown: Charles H. Houston and the Gaines Case,http://www.law.umke.edu/faculty/projects/ftrials/conlaw/houstonessayhtml.

""Interview with Sidney Redmond, July 6, 1970," Western Historical Manu-script Collection, http://www.ums.edu/-whmc/guides/t025.htm.6 'White to Redmond, 23 January 1940, NAACP Papers, part 3, series A, reel 15,frame 0236.62Linder, Before Brown, 15.63Ibid., 15-16; With All Deliberate Speed: The Legacy of Brown v. Board,"Strategy," http://www.brownvboard.info/strategyhtm; Chad Garrison, "TheMystery of Lloyd Gaines," The River Front Times, April 4, 2007; M. Zapp,"Who Was Lloyd Gaines?" Vox Magazine, December 21, 2006, and "Interviewwith Sidney Redmond, July 6, 1970."


38 WESTERN LEGAL HISTORY VoL. 23, No. 1

In March 1939, Lloyd Gaines, second from the left, stepped out of theAlpha Phi Alpha fraternity house in Chicago to buy postage stamps andwas never seen again. (Courtesy of the University of Missouri Law Library)

and the NAACP's request in 2007 was the first investigationthey had made into his disappearance.64 Douglas 0. Lindernotes how his family never reported Gaines as a missing personin part because, as one of his brothers claims, Gaines "alwayskinda' kept himself to himself," and the family did not think itparticularly suspicious that he had not been in contact.6 s How-ever, George Gaines, Lloyd's nephew, confirmed in a recentinterview with the author of this article that there was indeedan FBI file open on his uncle, and the family has never declaredhim dead.66 It is difficult to believe that the NAACP did notcontact the police and the FBI regarding Gaines since, had hebeen found murdered, the case would have taken more promi-nence and would have given the NAACP more ammunition tofight racism in America.

*4Garrison, "The Mystery of Lloyd Gaines."66Linder, Before Brown, 15.66George Gaines, email message to author, 27 April 2010.

38 WESTERN LEGAi, HISTORY VOL. 23, No. 1


In 2007, when the NAACP called on the FBI to reopenthe case in an attempt to verify or dispel such rumors,," thisrequest was denied. My own contact with the Kansas City FBIreveals that the case has never been reopened. After subse-quently filing a Freedom of Information Act (FOIA) request toview the files on the Lloyd Gaines case, I learned that the FBIhad destroyed them on March 1, 1996. Because the files weredestroyed (as part of the U.S. Department of Justice's "routinerecords retention schedules and departmental regulation"),the FBI and the U.S. Department of Justice have been unableto clarify if the files did in fact relate to Gaines and, if so,what information they held.6

1 Furthermore, it appears, fromthe length of time it took to process the FOIA request, thatGaines' FBI file has never before been requested, so the detailswill never be known.

NAACP lawyers only realized that their client was missingwhen he failed to appear for the deposition in the Boone CountyCourt regarding the equality of the newly opened law school atLincoln. Despite extensive attempts, including advertisementsin national and local papers, the NAACP failed to locate Gaines.Without a plaintiff, the case could not continue. On December 27,1939, Charles Houston wrote to Sidney Redmond telling himthat they would have to drop the case. On January 15, 1940,Gaines was dismissed by Boone County Court.6 9

At the same time, Houston wanted it to be widely knownthat the NAACP intended to follow up Gaines with anotheradmissions case that had arisen in Missouri7 0 Even before thenews of Gaines' disappearance, the NAACP was pursuing an-other higher education case in Missouri, with Lucile Bluford asplaintiff. Weeks after the U.S. Supreme Court handed down itsdecision in Gaines, Bluford applied to the School of Journalismat the University of Missouri, but she was denied admission onJanuary 30, 1939, when the registrar realized that she was Afri-can American.7 ' Bluford had been in touch with the NAACPthroughout the Gaines case in her capacity as a journalist, but

"Ali Gabel, "Group Calls to Reopen Gaines Case," Columbian Missourian,March 4, 2007.

6^David. M. Hardy to author, 26 May 2010; Janice Galli McLeod to author,27 September 2010.

"'Redmond to Roy Wilkins, 15 January 1940, NAACP Papers, part 3, series A,reel 15, frame 0235.70Houston to Redmond, 27 December 1939, NAACP Papers, part 3, series A,reel 15, frames 0228-32.7'Robert McLaran Sawyer, "The Gaines Case: Its Background and Influence onthe University of Missouri and Lincoln University 1936-1950" (Ph.D. disserta-tion, University of Missouri, 1966), 202-205.

39

she had not contacted Houston about her own case until Janu-ary 25, 1939, for advice about how to proceed.7 2 S.W. Canada,the registrar at the University of Missouri, told Bluford thatsince Gaines was before the courts, the university would notalter its established policy of exclusion unless directed to bythe state legislature or the courts.' Like Gaines, Bluford wassent to Lincoln University to pursue her education.

Bluford's case did not formally begin until October 1939,after it was discovered that Gaines was missing. Houston filedfor a writ of mandamus on October 13 to compel the Univer-sity of Missouri to admit Bluford to the School of Journalism.14

The case proceeded in much the same way that Gaines had.The University of Missouri's lawyers claimed that the plaintiffshould have applied to Lincoln University, since it was thatinstitution's responsibility to provide an education for Missouri'sAfrican American citizens. Judge Dinwiddie once again foundin favor of the University of Missouri, citing the fact that Blufordhad not applied to Lincoln for her course."

The Bluford case was appealed in the Missouri SupremeCourt in July 1941. The central issue for the University of Mis-souri was that Bluford had not applied to Lincoln University,where the board of curators, under the Taylor Bill of 1939, wasrequired to establish parallel, equivalent courses at Lincolnto those at the University of Missouri. The Missouri SupremeCourt decided that Bluford should be admitted to the Univer-sity of Missouri only if Lincoln failed to establish a school ofjournalism in a "reasonable time."76 This marked the end ofthe case and the NAACP's immediate attempts to integrateMissouri's higher education facilities.

In 1941, a journalism course was offered at Lincoln, butBluford did not enroll because she only wanted to attend theUniversity of Missouri.7 The Second World War affected en-rollment rates at both the University of Missouri and LincolnUniversity to the extent that the journalism school at the Uni-

nLinder, Before Brown, 16.7 3Statement by Registrar Canada, NAACP Papers, part 3, series A, reel 24,frame 0535.

,'Petition for Writ of Mandamus, NAACP Papers, part 3, series A, reel 24,frames 0709-17.75Opinion of the Court, NAACP Papers, part 3, series B: Legal Department andCentral Office Records, 1940-1950, reel 13, frames 0170-79.76Supreme Court of Missouri Decision, NAACP Papers, part 3, series B, reel 12,frames 1135-45.

"7 Kelleher, "The Case of Lloyd Lionel Gaines," 270.

VoL. 23, No. I40 WESTERN LEGAL HisroRy

versity of Missouri was suspended in 19417 The war also hada negative impact on the finances of Missouri, reducing stateincome and limiting available funds for higher education at bothwhite and African American institutions.9 This hurt LincolnUniversity most, since it was already struggling to providecourses, both undergraduate and graduate, equal to those ofthe University of Missouri. One proposal was to close both thelaw and journalism schools at Lincoln in the summer of 1944if adequate funds were not available to provide students with adecent education.A0 The journalism school at Lincoln was thefirst to close in February 1944. With the aid of the state attor-ney general, Democrat Roy McKittrick, and Governor ForrestDonnell, the University of Missouri accepted a plan to extendits journalism school to its Jefferson City campus to teachAfrican American students." This meant that the journalismteachers at Lincoln lost their jobs."

The system of segregation in Missouri began to crumble inthe second half of the 1940s due to a combination of pressurescreated by the Gaines and Bluford litigation and also the de-cline in available state funding for higher education. In 1945, anew state constitution presaged the changes to come by allow-ing schools to integrate if they so desired.' Four higher educa-tion facilities-Eden Theological Seminary, the University ofKansas City, St. Louis University, and Washington University-as well as all Catholic elementary and high schools in Missouribegan the process of integration in 1947.84

None of these institutions faced major disruption or oppo-sition to desegregation, and the developments placed furtherpressure on the legislature to completely outlaw segregation.In 1948, the Missouri Equal Rights Committee, a group ofcongressmen from the Missouri House of Representatives, wasestablished with the initial aim of making higher educationfairer for African American students. The committee requestedthat a representative of the University of Missouri attend ameeting to discuss the situation, and the university sent AllenMcReynolds, the president of the board of curators. Together

"Brigham, "The Education of the Negro in Missouri," 233, and Grothaus, "TheInevitable Mr. Gaines," 30.79Sawyer, "The Gaines Case," 306.

s0 lbid., 309-10.

"Ibid., 315-22.

"Grothaus, "The Inevitable Mr. Gaines," 31-32.

'Missouri Constitution, Article 9, section 2, 1945.

"Grothaus, "The Inevitable Mr. Gaines," 34.

41WINTER/SPRING 2010 THE COLDEST CASE

McReynolds and the committee proposed a policy to the generalassembly that would effectively mean full compliance with theGaines decision. They wanted to amend legislation that prohib-ited state and public universities from admitting African Ameri-can students. However, this was not a request for sweepinglegislation that would outlaw segregation completely. Rather,it would allow universities to admit African Americans whenLincoln University could not provide the desired education."

House Bill 182 proposed the policy change to the stateconstitution that would remove race from the requirements toenter a university. It passed the Missouri House of Representa-tives but was defeated in the state senate, in part because ofan apparent race riot that arose in St. Louis when a swimmingpool there was integrated. The riot caused the senators to haltthe passage of the higher education bill.16

It ultimately required the efforts of the NAACP and newplaintiffs to break the color barrier in higher education in Mis-souri. In early 1950, three African Americans, Gus T. Ridgel,George Horne, and Elmer Bell, Jr., applied to the University ofMissouri. They were represented by Sidney Redmond and localNAACP lawyers Henry Epsy and Robert Witherspoon. Thecase came before Cole County Court in June 1950. Aware thatit was now required by state law to admit African Americanstudents, the university asked the court to hand down a rulingthat would go beyond the case in question to establish the gen-eral principle that African American students whose courseswere not offered at Lincoln could attend the University of Mis-souri. 7 Under the circumstances, Judge Samuel Blair took littletime handing down a ruling that permitted the University ofMissouri to admit African American students." Although thestate did not change its policy of segregation in higher educa-tion, desegregation did effectively begin to occur on a limitedbasis at the University of Missouri because of the ruling.9

Blair's decision was influenced by the lack of funds at Lincoln,combined with the earlier court decisions in Gaines and inSipuel, a Supreme Court ruling in 1948. In a case parallel-ing Gaines, Ada Louis Sipuel, a graduate of the State Collegefor Negroes in Langston, Oklahoma, applied for admission tothe law school at the University of Oklahoma in 1945 on thebasis that there was no separate but equal school in the state

"Sawyer, "The Gaines Case," 323-24.

"Grothaus, "The Inevitable Mr. Gaines," 37."Sawyer, "The Gaines Case," 328.

"Ibid.

"9Grothaus, "The Inevitable Mr. Gaines," 39-42.

42 WESTERN LEGAL HiSTORY VoL. 23. No. 1

for her to attend. In early 1948, the Supreme Court heard hercase and decided in her favor. Much of the ruling was based onGaines, echoing the earlier findings in that case that the statewas obliged to provide equal educational opportunities forAfrican American students when it did the same for "any othergroup. "90 The regents of the University of Oklahoma followedthe same path as Missouri by establishing an African Americanlaw school to avoid admitting Sipuel. However, this law schoolwas open for only eighteen months, in part because of otherlitigation going through the courts at that time and the real-ization that it was not feasible to create "separate but equal"facilities for all courses available at the University of Oklaho-ma. Sipuel was admitted to the University of Oklahoma's lawschool in 1949.91 The developments in Missouri and Oklahomapointed the way to other imminent court rulings that wouldend segregation in higher education in the South.

CONCLUSION

Although the Supreme Court ruled in favor of Sipuel in1948, it did not specifically require the integration of the Uni-versity of Oklahoma. It took another student, George McLaurin,to force the university to admit an African American student.McLaurin was an African American teacher who wanted tocomplete a Ph.D. in education, but there was no such coursefor him at an African American higher education institution inthe state. McLaurin sued the University of Oklahoma and wasadmitted to the course with little fanfare, mainly due to the ac-knowledged lack of alternatives within the state. Nevertheless,on entering the university he discovered that segregation stilloperated there. He had to sit separately from the other studentsin the classroom, he was forced to eat at a separate time and aseparate table in the university cafeteria, and he had his ownseparate desk in the university library. The NAACP objected tothese arrangements, and the Supreme Court ruled in 1950 thatthe actions of the University of Oklahoma were unconstitu-tional, since they denied George McLaurin equal protection ofthe laws as guaranteed by the Fourteenth Amendment.92

On the very same day that the Supreme Court ruled in theMcLaurin case, it also ruled in the Texas case of Sweatt v

'Sipuel v, Board of Regents of Univ of Okla., 332 US. 631 (1948).

"Mark V Tushnet, The NAACPs Legal Strategy against Segregated Education,1925-1950 (Chapel Hill, NC, 1987), 120-23.

'McLaurin v. Oklahoma State Regents, 339 US. 637 (1950l,

WINTER/SPRING 2010 THE COLDEST CASF 43

Painter. In 1946, postal worker Herman Sweatt had applied tothe University of Texas to study law, but he was denied admis-sion. In the lower courts, the judge ruled that Texas must createa law school that Sweatt could attend within six months. Inresponse, Texas established a temporary school for Sweatt thatwas equal to the law school at the University of Texas in termsof its physical condition and facilities. But the NAACP, in anattempt to push the Supreme Court further to overturn thePlessy doctrine of separate but equal, argued that the separatelaw school provided by the University of Texas was not in factequal because of a variety of "intangible factors," such as theequivalent reputations of the schools and their alumni. All ofthese factors, the NAACP contended, contributed to the edu-cational experience at the university and the ultimate successof its students.9 The Supreme Court ruled in favor of Sweatt,stating that such intangible factors were indeed a substantialpart of the inequality of the separate schools provided by Texasand other states. The Court ordered Sweatt to be admitted tothe University of Texas94

Sweatt narrowed the Supreme Court's interpretation ofPlessy's separate but equal doctrine to such an extent thatit appeared that the only viable alternative left for universi-ties was to desegregate. This led the NAACP to abandon itsprevious legal strategy that insisted on "separate but equal"facilities and to instead directly challenge Plessy by demand-ing complete desegregation. To do this, the NAACP took onfive elementary education cases, which all came before theSupreme Court in 1952 under the title of Brown v. Board ofEducation. In 1954, the case led to a landmark ruling by theSupreme Court that declared that segregated education was un-constitutional and a violation of the equal protection clause ofthe Fourteenth Amendment. As in the higher education cases,the Court cited factors beyond the physical equality of schools,pointing to the impact of segregation on African Americanchildren's "hearts and minds" and stressing the psychologicaldamage of segregated education."

However, Brown only outlawed segregation in elementaryand high school education. It was not until 1956 that theSupreme Court, finally, extended the ruling to universities inFlorida ex rel. Hawkins v. Board of Control.' Virgil Hawkins,an African American veteran of World War II, applied to law

"Tushnet, The NAACPs Legal Strategy, 126-27."Sweatt v. Painter, 339 U.S. 629 (1950).

"Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).96Florida ex rel, Hawkins v, Board of Control, 350 U. S. 413 (1956).


school at the University of Florida in 1949 but was denied ad-mission. His case went before the Florida State Supreme Courtseven times and was appealed to the U.S. Supreme Court fourtimes. After the U.S. Supreme Court handed down its imple-mentation order for the Brown decision in 1955, the case wasremanded back to the state supreme court, which refused toadmit Hawkins immediately but instead investigated the pos-sible outcomes of his admittance. When the case again reachedthe U.S. Supreme Court, the justices decided that their decreeof "all deliberate speed" in the Brown II ruling was not appli-cable to higher education and that Hawkins should be admit-ted to the university based purely on the Brown I ruling. 7

Nevertheless, the Florida Supreme Court simply ignored thisruling, in line with the development of "massive resistance"to the implementation of Brown in schools across the South.Florida continued to deny Hawkins immediate admittance,and, just like Gaines, he was never admitted to the Universityof Florida. After nine years of litigation, Hawkins gave up andcompleted his education at Boston University instead.98

Hawkins' attempt to be admitted to the University ofFlorida finally brought the question of desegregation in highereducation to a resolution. Of course, the process had been setin motion by Lloyd Gaines in 1935. Gaines was the first U.SSupreme Court ruling giving African Americans the right tostudy at a previously all-white university, and, although Mis-souri continued to evade the decision, it was a milestone in theNAACP's struggle to desegregate education. Whether Gaineswas able to witness and appreciate the legacy of his actionsremains an unsolved mystery and arguably still the FBI's coldestcase of all.

9Ibid.

"Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court andthe Struggle for Racial Equality (Oxford, UK, 2004), 256-58.


UPHOLDING CULTURE AND LANGUAGE

IN GUADALUPE, ARIZONA:

BILINGUAL EDUCATION ACTIVISMIN THE 1970S

LINDSEY PASSENGER WIECK

U ntil the mid 1970s, the Veda B. FrankElementary School in Guadalupe, Arizona, whose studentswere predominantly Mexican American and Yaqui,remained racially and ethnically segregated. Beginning in1970, the citizens of Guadalupe, which was part of theTempe Elementary School District, challenged the schooldistrict to improve their children's schools. Guadalupanostargeted the district's discriminatory special educationprograms and its monolingual policies and practices. Usinggrassroots organization and litigation, they challengedthe hegemonic national ideal that citizenship requiresbeing "American" and speaking English. Guadalupanosasserted the need for public schools in Arizona to respectthe cultural and linguistic diversity of their students.Guadalupano activism not only challenged nationalpolicies of monolingualism and the assimilative goalsof public education, but it also improved Guadalupanostudents' access to an equitable education.

This case study examines how Guadalupanos organizedfor reform in the Tempe Elementary School District. Startingin 1970, Guadalupanos advocated for changes in the schooldistrict, demanding that the schools consider a student's home

Lindsey Passenger Wieck is a doctoral student in the Depart-ment of History at the University of Notre Dame. She thanksEric Meeks, Jon Coleman, Brian Collier, and Michael Amundsonfor their many valuable comments. This essay was namedsecond runner-up for the 2010 Jerome I. Braun Prize in WesternLegal History.

48 WESTERN LEGAL HiSTORY VL 3 o

language in the special education assessment and placementprocesses. While this grassroots activism was an importantstarting point for Guadalupanos' activism, it was not enoughon its own to change district practices. Guadalupanos furtheredtheir demands with a lawsuit, Guadalupe Organization v.Tempe Elementary School District (1972),' which they settledsuccessfully in 1972. This process of litigation, along withgrassroots activism, enabled Guadalupanos to make meaning-ful changes to the Frank School. The settlement altered localdistrict practices and Arizona laws regarding special educationassessment and placement, marking increased institutionalacknowledgment of the educational rights of non-native English-speaking students.2 Guadalupe, along with Diana v. State Boardof Education (1970)- and Covarrubias v. San Diego Unified(1971 ),4 established and defined the language rights of non-English-speaking students in regard to special education place-ment. Attesting to the national significance of Guadalupe'sactivism, special education textbooks and guides still defineplacement and assessment policies and practices in referenceto Diana, Covarrubias, and Guadalupe.' The Guadalupanos'educational activism and their momentous settlement changedhow Americans thought of non-English speakers and educationin Tempe Elementary School District, Arizona, and the nation.

While Guadalupe changed policies and practices at the stateand national levels, Guadalupanos felt its greatest effects locally.In Guadalupe, litigation and community organization worked intandem. Guadalupanos grounded their lawsuit on grassroots activ-

'Guadalupe Organization, Inc. v. Tempe Elementary School District, No. 3,CIV 71-435 (Dist, of AZ 1972), box 30, folder 10, Cecilia Teyechea Denogean deEsquer Papers (CTDEP), Chicano Research Collection (CRC), Special Collec-tions, Arizona State University (SCASU) [hereinafter cited as Guadalupe Orga-nization, CIV 71-4351; Jerry Levine, Arizona Settlement of Special EducationLawsuit, January 24, 1972, par. 4, Si, box 30, folder 10, CTDEP, CRC, SCASU.2Tempe Elementary School District Board of Trustees Minutes, box 30, folder 7,CTDEP, CRC, Special Collections, Luhr's Reading Room, Hayden Library,SCASU; Socorro Hern4ndez Bernasconi, "The 'Why' of the Guadalupe Organi-zation Special Education Lawsuit," 1973-77, CRC, SCASU, 16.

-Diana v State Board of Education, Civil Action No. C-70-37 (N.D. Calif. 1970).

'Covarrubias v. San Diego Unified School District, Civil Action No. 70-394-T(S.D. Calif. 1971) [hereinafter cited as Covarrubias, Civil Action No. 70-394-Ti.

sElaine Fletcher-Janzen and Cecil R. Reynolds, Concise Encyclopedia of SpecialEducation: A Reference for the Education of the Handicapped and OtherExceptional Children and Adults, 2" ed. (New York, 2004), 316-17; Susan Jacoband Timothy S. Hartshorne, Ethics and Law for School Psychologists, 4 th ed.(New York, 2003), 134. Similarities in language suggest that Guadalupe alsoinfluenced the Education for All Handicapped Children Act (1975) and theIndividuals with Disabilities Education Act (1990).

48 VOL. 23. No. I

ism, and their success with the settlement encouraged the con-tinuation of community organization and political engagement.Guadalupe mobilized Guadalupanos, educated them, refinedtheir definitions of citizenship and equal educational opportunity,and taught them to stand up for these new conceptualizationsand their rights. This litigation also provided Guadalupanos anopportunity to de-stigmatize their languages and cultures, whilethey taught their children and grandchildren traditional customsand pride in their cultural and linguistic identity.

Guadalupanos' activism, both through litigation andgrassroots endeavors, led to an understanding of their effortsas a form of cultural citizenship, because they demanded theinclusion of their culture and language in schools as a guar-anteed right of citizenship. Citizenship is membership in apolitical community, and this membership involves rightsand responsibilities.6 Cultural citizenship incorporates theattempt to attain full membership in the American nation-state, while also asserting that one need not revoke his/herlanguage or culture to become an American citizen. WilliamFlores and Rina Benmayor, humanities and cultural studiesscholars, explain cultural citizenship as a perspective thatallows for the interpretation of "cultural processes that resultin community building and political claims raised by margin-alized groups on the broader society."' In referring to culturalcitizenship, historian Eric Meeks explores particularly howthe demands of Chicano activists went beyond a fight forlegal rights to "a cultural and political struggle for dignity,identity, 'belonging, entitlement, and influence.'" In relationto cultural citizenship, one can examine how ethnic activistsdemanded "new" rights and redefined citizenship throughthese demands. This concept connects the realization of legalinclusion with cultural rights and processes. The idea of cul-tural citizenship serves as a useful tool in examining how theGuadalupanos' fight for cultural and linguistic rights was notonly an assertion of legal citizenship, but also a reconceptual-ization of citizenship.

Historians study citizenship and culture and languagerights together, because, often in the nation-state, thedominant group has utilized language to mark its unique

'Stuart Hall and David Held, "Citizens and Citizenship," in New Times: TheChanging Face of Politics in the 1990s, ed. Stuart Hall and Martin Jacques(London, UK, 1989), 175.

'William V. Flores and Rina Benmayor, eds., Latino Cultural Citizenship:Claiming Identity, Space, and Rights (Boston, 1997), 15.

'Eric V. Meeks, Border Citizens: The Making of Indians, Mexicans, and Anglosin Arizona (Austin, TX, 2007), 181.

wIrERa/SPRING 2010 BILINGUAL EDUCATION ACTIVISM 49


cultural identity and to maintain hegemony within thenation.9 The school is an ideal location in which to examineprocesses of citizenship, acculturation, and bilingualism,because assimilation has been a common function of schoolsfor more than a century. Because of this assimilative func-tion, schools can reveal much about the dominant nationalconception of citizenship, especially as it pertains to lan-guage and culture.

The Tempe Elementary School District used testing proce-dures that made two assumptions about students' linguisticcapacities: (1) Tempe School District assumed that all chil-dren entering public schools spoke English, and (2) if thesestudents did not speak English, the school district assumedthat mental retardation caused the language deficit. Thesebeliefs reflect an understanding of citizenship that idealizeda monolingual, homogenous nation. Arguing that the as-sumed links between citizenship, intelligence, and the Eng-lish language did not actually exist, Guadalupanos fought forreconceptualization of citizenship that recognized the diversemultilingual, multicultural American citizenry. When theysuccessfully settled Guadalupe, Guadalupanos gained edu-cational rights for their children by creating a binding legaldocument that required Tempe Elementary School Districtand the state of Arizona to change their policies and practices.Using this lens of cultural citizenship, historians can see notonly the ways in which the law acted historically againstthose with variant cultures and languages, but also how thesecommunities attempted to gain full citizenship rights with-out discarding their cultural identities.

Throughout the 1970s, Guadalupanos asserted that theability to be bilingual was a civil right and thus a rightthat schools needed to respect. They worked tirelessly toimprove Frank School, hoping to ensure their children'ssuccess and sustain the community's identity. The mutu-ally dependent processes of grassroots activism and litiga-tion enabled Guadalupanos to preserve their cultures andlanguages and to implement educational reforms in TempeElementary School District.

'Clare Mar-Molinero, The Politics of Language in the Spanish-Speaking World:From Colonisation to Globalisation (London, UK, 2000), 3-15. Mar-Molinero'scitations include Peter Alter, Nationalism (London, UK, 1991); Michael Billig,Banal Nationalism (London, UK, 1995); and Benedict Anderson, ImaginedCommunities: Reflections on the Origins and Spread of Nationalism (London,UK, 1991).

VOL. 2, No. I5o0

BILINGUAL EDUCATION ACTIVISM

HISTORICAL CONTEXT

Bilingualism and language rights have a long, contestedhistory in the United States. Prior to and during Europeancolonization, many peoples with diverse languages inhabitedwhat would later become the United States, and people neededto cross language barriers to communicate. Bilingual educationwas common in the United States until the early twentiethcentury. As the United States grew increasingly diverse, manyAmericans began to believe that bilingual education wasunnecessary and harmful to the creation of a unified nation.Throughout the twentieth century, bilingual education pro-grams cycled between popularity and stigmatization, due tothe rise and fall of factors such as xenophobia and immigration.Language rights and bilingual education are still hotly debatedafter a long history of shifting public opinions.xo

In bilingual education programs, the teacher instructs a non-native-English speaking student, or English language learner,using both the student's vernacular language and English asthe means of communication and/or for teaching content inthe classroom. Although bilingual education varies in methodand form, the two main types of bilingual education are as-similative bilingual education and additive bilingual education.Assimilative bilingual education is a temporary supplementalcurriculum that teaches English language learners basic Eng-lish and orients them to American cultural norms. In theory,these programs enable learners to enter mainstream classroomsquickly. In contrast, additive bilingual education programs aremore intensive than those of assimilative bilingual education.These programs aim to teach English, by instructing studentsin listening, speaking, reading, and writing skills, while alsoteaching content in students' native languages to ensure thatthey do not fall behind in their regular studies. Programs thatare more intensive include a permanent course of study thatenables students to be proficient in two languages (frequentlythe student's vernacular and English) by teaching content inboth languages." Often additive bilingual education includes

"For more on the history of bilingual education, see Carlos Kevin Blanton, TheStrange Career of Bilingual Education in Texas, 1836-1981 (College Station,TX, 2004); Guadalupe San Miguel, Jr., Contested Policy: The Rise and Fall ofFederal Bilingual Education in the United States, 1960-2001 (Denton, TX,2004); James Crawford, Bilingual Education: History, Politics, Theory, andPractice, 4 th ed. (Los Angeles, 1999).

"Jonathan D. Haft, "Assuring Equal Educational Opportunity for Language-Minority Students: Bilingual Education and the Equal Educational OpportunityAct of 1974," Columbia Journal of Law and Social Problems 18:2 (1983): 251.


bicultural elements, which blend American culture and stu-dents' home cultures into the curriculum.) Moreover, additivebilingual education programs frequently integrate best teachingpractices that boost students' self-esteem by acknowledgingstudents' unique cultural identities.13

To understand the Guadalupanos' educational activism, wefirst need to review Guadalupe's history and the developmentof grassroots organizing within the community. Guadalupe isa small town in the Phoenix, Arizona, metropolitan area. TheYaquis and ethnic Mexicans in Guadalupe are primarily the de-scendants of late nineteenth- and early twentieth-century im-migrants.4 In the late nineteenth century, Yaqui Indians fled debtpeonage and violent persecution by the Porfirio Diaz regimein Mexico.I They settled as refugees near Tempe and Tucson,and the United States granted them political asylum. Shortlythereafter, in the early twentieth century, Mexican immigra-tion drastically increased in southern Arizona, particularlyin the Salt River Valley. Southern Arizona and the Salt RiverValley attracted many Mexicans not only because it allowedthem to escape the economic and political turmoil caused bythe Mexican Revolution, but also because of the availability ofjobs picking cotton and other agricultural- and irrigation-relatedwork. In the 1920s and 1930s, ethnic Mexicans settled in andaround the original Yaqui settlements, some as landowners

12While multicultural education refers to the incorporation of three or morecultures, most academic sources use the term bicultural education whendiscussing 1970s educational activism and programs. Because of this tendency,I use this terminology, even though Guadalupanos advocated for the inclusionof both Mexican American and Yaqui culture in schools.

"Lesley Wright, "Tribal Schools See Future in Native American Teachers," TheArizona Republic, March 14, 2010, http://www.azcentral.com/news/articles/2010/03/14/20100314native-american-teachers.html; Jon Allan Reyhner,Teaching American Indian Students (Norman, OK, 1992); Haft, "AssuringEqual Educational Opportunity for Language-Minority Students," 250-58;Frank N. Houston, Culture-A Way to Reading: An Instructional Guide forUse with Yaqui Students (Tempe, AZ, 1980).14Another prominent group of Yaquis today lives on the Pascua Reservationnear Tucson. For more on these Yaquis, see Octaviana Trujillo, "A TribalApproach to Language and Literacy Development in a Trilingual Setting," inTeaching Indigenous Languages, ed. Jon Reyhner (Flagstaff, AZ, 1997), 10-21;Octaviana Valenzuela Trujillo, "Yaqui Views on Language and Literacy" (Ph.D.dissertation, Arizona State University, 1991); Sam Aaron Brewer, Jr., "TheYaqui Indians of Arizona: Trilingualism and Cultural Change" (Ph.D. disserta-tion, The University of Texas at Austin, 1976).

"The Yaquis refer to themselves as the Yoemem ("the people"), and to theirlanguage as "Yoeme." Trujillo, "Yaqui Views on Language and Literacy," 95.

52 WFSTERN LEGAL HisroRy VOL. 23, No. I

and others as squatters. By the mid 1960s, Mexican Americansmade up two-thirds of the community's occupants.'6

Near Tempe, Yaquis purchased land, set up a village, andcreated cultural institutions, and many worked on irrigationprojects in the Salt River Valley. In the 1920s and 1930s, Yaquisand ethnic Mexicans, who often worked and lived near eachother, maintained separate identities. Some Yaquis wished toseparate themselves from the more recent Mexican immigrantsso as not to be stigmatized as Mexicans. Yaquis working in theSalt River Valley lived temporarily in work camps nearby, butas these jobs evaporated in the 1950s and 1960s largely due totechnological and transportation developments, most returnedto Guadalupe and were surprised to find ethnic Mexicans in-habiting the village they had left."

In the 1960s, the town lacked infrastructure, includingmodern water and utility services, and its houses and buildingswere in disrepair. To improve the town's grim conditions, Gua-dalupanos formed the Guadalupe Health Council in 1960. TheGuadalupe Health Council addressed issues of health, safety,

"Meeks, Border Citizens, 77-78, 148, 182.

"Leah S. Glaser, "The Story of Guadalupe, Arizona: The Survival and Preservationof a Yaqui Community" (M A. thesis, Arizona State University, 1996), 17-58.

Reflecting the town's Mexican and Indian cultural history, the YaquiTemple and Our Lady of Guadalupe Church stand side-by-side inGuadalupe, Arizona. (Courtesy of Rose Mary Arriano, town clerk)

WINTER/SrRING. 201.0 l3n,1N(_AJAi_ EDUCATION ACTIVISM 53

S4WESTERN LEGAL HISTORY VO I2. o

and infrastructure in the town and registered Guadalupanosto vote. Guadalupanos modeled the health council on 1950sMexican American activist organizations like the CommunityService Organization, which emphasized voter registrationand citizenship training as well as strategies that enabled localcommunities to decide autonomously which issues to pursue."This style of organizing, which included gatherings in localhomes, encouraged full community participation and enabledresidents to discuss local issues.9

The Guadalupe Health Council incorporated as the Guadal-upe Organization in 1964. Historian Leah Glaser notes that theGuadalupe Organization was the Guadalupanos' first means ofgaining political power and enacting change and improvementin Guadalupe.20 The power of this activism is clear in the Gua-dalupe Organization's actions: it built a post office, registeredvoters, set up a voting precinct within the community, pro-vided job counseling, and hired a deputy sheriff for Guadalupe.The organization also created a Neighborhood Youth Programand a Head Start program, instituted a dental clinic, started anadult education and rehabilitation program, established residentownership of land, and founded the Guadalupe OrganizationFederal Credit Union." By 1971, the Guadalupe Organizationhad 440 dues-paying members who represented many of Gua-dalupe's households.22

In the late 1970s, one government source estimated Gua-dalupe's population to be approximately 2,100-60 percentMexican American and 40 percent Yaqui.23 Unfortunately,this statistic did not account for the many Guadalupanos whowere of both Mexican and Yaqui lineage. In general, Guadalu-panos tended to obtain less education, earn a smaller income,and work more frequently in menial jobs than the averageAmerican citizen. In 1970, at least 53 percent of households

"Ella Varbel, "An Interview with Lauro Garcia," transcript, November 19,1973, CRC, SCASU, 14; Meeks, Border Citizens, 182.

'9Meeks, "Cross-Ethnic Political Mobilization and Yaqui Identity Formationin Guadalupe, Arizona," in Reflexiones: New Directions in Mexican AmericanStudies, ed. Neil Foley (Austin, TX, 1998), 87.

"Glaser, "The Story of Guadalupe, Arizona," 73.2 1Meeks, "Cross-Ethnic Political Mobilization and Yaqui Identity Formation inGuadalupe, Arizona," 87-88.2 Richard R. Valencia, Chicano Students and the Courts: The Mexican Ameri-can Legal Struggle for Educational Equality (New York, 2008), 143.

'"United States Commission on Civil Rights, School Desegregation in Tempe,Arizona: A Staff Report of the United States Commission on Civil Rights,September 1977, http://www.law.umaryland.edu/marshal1/usccr/documents/crl2d4526.pdf.

VOL. 23 NO. I54

BILINGUAL EDUCATION ACTIVISM

in Guadalupe were below the poverty level, and the major-ity of the labor force worked in farming and industrial jobs.In 1971, more than 80 percent of the population that was agetwenty-five and over had completed eight or fewer years ofschool. Generally, Yaquis in Guadalupe had lower incomesand had attended fewer years of school than their MexicanAmerican counterparts.2

1

The Guadalupe Organization was successful not only in im-proving the community and increasing its political power, butalso in protecting Guadalupe from the growing post-war sprawlof Tempe and Phoenix. Overcoming religious, ethnic, class,and cultural tensions between Mexican Americans and Yaquis,the Guadalupe Organization led Guadalupe to incorporate as atown in 1975. Incorporation prevented Guadalupe from beingannexed by Tempe, thus maintaining community autonomy.Ultimately, incorporation enabled Guadalupanos not only toimprove their health, safety, standard of living, and educationalopportunities further, but also to maintain and protect theirlanguages and cultural identities.6

Tempe, which is adjacent to Phoenix, to the southeast, sur-rounds Guadalupe, and the juxtaposition of these two areas isstark. Today the modern city of Tempe lies in direct contrastto the neighboring buildings of Guadalupe, many of which aredilapidated. Tempe is a university community, housing therapidly growing Arizona State University, which contributes tothe city's size and diversity. In 1970, racial and ethnic minori-ties (mostly Mexican Americans) made up 14 percent of Tempe'spopulation of 62,907.7

Guadalupe is in the Tempe Elementary School DistrictNo. 3.2 Tempe Elementary School District annexed Guada-lupe in 1953. The district had twenty elementary schools,three intermediate schools, and no junior or senior high

"4This does not include households consisting of unrelated individuals. Meeks,"The Yaqui of Guadalupe: Strategies of Ethnicity in an Urbanizing Village,1960-1980" (M.A. thesis, The University of Texas at Austin, 1996), 105-106.

"Ibid., 24.

"For more on Guadalupe and the Guadalupe Organization, see Meeks, "TheYaqui of Guadalupe"; Meeks, Border Citizens, 144-54, 183-244; Meeks,"Cross-Ethnic Political Mobilization and Yaqui Identity Formation in Guadal-upe, Arizona"; Glaser, "The Story of Guadalupe, Arizona."

"This government source considered Yaquis as Native Americans althoughthey had yet to be officially designated as such at this point. United StatesCommission on Civil Rights, School Desegregation in Ternpe, Arizona, I.

2Information & History-Tempe Elementary School District, n.d., http://www.tempeschools.org/Distriet.cfm?subpage=165.



schools." In the 1975-76 school year, Tempe ElementarySchool District had 13,406 students enrolled, 20.2 percent ofwhom were minority students. Of these minority students,15.4 percent were Mexican American.3 o The faculty was notrepresentative of the student population: out of 671 facultyin Tempe Elementary School District, less than 12 percentwere minority teachers.3 '

Veda B. Frank School was the only school located withinGuadalupe. In the 1972-73 school year, 92 percent of theFrank School's student population were minority students,and 90 percent of these were Mexican American. FrankSchool is an example of how Tempe Elementary SchoolDistrict concentrated minority students at only a few of itsschools. In December 1972, the Office of Civil Rights foundTempe Elementary School District to be in noncompliancewith Title VI of the Civil Rights Act . 2 This began the pro-cess of desegregation, which continues in Tempe ElementarySchool District today.

This overconcentration seemed to be partly de facto segre-gation, caused by the school district's attempts to maintainneighborhood schools that kept students close to their homesand community.33 Many Guadalupanos chose to remain inGuadalupe for a variety of reasons, including kinship ties andcultural and linguistic maintenance. At the same time, however,Mexican Americans and African Americans were historicallyprevented from moving into white neighborhoods due to dis-criminatory housing clauses and availability, as well as factorscaused by discrimination, such as lack of education and jobavailability. Federal, state, and municipal policies had long sup-ported residential segregation.34

The Tempe Elementary School District administration tookan active role in segregating Guadalupanos by modifying atten-

9United States Commission on Civil Rights, School Desegregation in Ternpe,Arizona, 4.

3"Although not specified, this presumably counted Yaquis as Native Ameri-cans. Ibid., 1.3 Ibid.

32Floyd L. Pierce, regional civil rights director, to O.S. Fees, 14 December 1972,box 30, folder 4, CTDEP, CRC, SCASU.

'3De jure segregation is segregation that is sanctioned by law, whereas de factosegregation is segregation that happens in practice, but is not necessarily basedon law.

a"Meeks, Border Citizens, 159-61; Matthew C. Whitaker, Race Work: The Riseof Civil Rights in the Urban West (Lincoln, NE, 2005); Thomas J. Sugrue, TheOrigins of the Urban Crisis: Race and Inequality in Postwar Detroit (Princeton,NJ, 2005).

VoL. 23, No. 156

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With a population of 92 percent minority students, the Veda B. FrankSchool is one example of how the Tempe Elementary School Districtconcentrated minority students in just a few of its schools. (Courtesyof Tempe Elementary School District)

dance boundaries to isolate minority students further. SocorroBernasconi, a counselor at Frank School, charged that TempeElementary School District bussed Anglo students out of theFrank School area to schools with a greater Anglo population.35

Additionally, school board minutes provide evidence of parentssuccessfully petitioning the district to remove their childrenfrom Frank School and send them to neighboring schools withmostly Anglo students.3 6 Nor was the school itself an equitableenvironment: its padlocked restrooms and cesspool provedthis.37 Lauro Garcia, a community activist leader, noted thatthe school padlocked the restrooms because the water pres-sure was low, and waste from the toilets settled in the cesspoolbelow the school, creating an unbearable odor. Presumably, no

3 Bernasconi, "The 'Why' of the Guadalupe Organization Special EducationLawsuit," 1.36Tempe Elementary School District School Board Minutes, Tempe ElementarySchool District, 1970-80, October 18, 1972 (p. 1) March 21, 1973 (p. 2), andApril 18, 1973 (p. 2).37Cecelia de Esquer, rough draft of paper on Guadalupe [n.d.], box 31, folder 20,CTDEP, CRC, SCASU.


58 WSENLGLHsoyVL 3 o

other schools in the district had such structural flaws. Addingto the injustice, the teachers' restrooms remained open, whilethe "children were there suffering irreparable . . . psychologicaland physical damage.',a3

Starting in October 1964, Guadalupanos successfully foughtto remedy inequalities in Frank School, starting with the prob-lems of the locked restrooms and the cesspool. These successesencouraged Guadalupanos to continue fighting for their rights,especially those related to the physical inequalities of theschool building and property. They beseeched the district toadd streetlights in front of the school, improve the playground,and construct a new cafeteria.39 These efforts sought to pro-tect Frank School as a physical space in which Guadalupanoscould safely learn, play, and socialize. Other practical changesresulting from Guadalupe Organization's activism, includingimproved health care, town infrastructure, incorporation, andincreased voter registration and accessibility, bolstered thesepragmatic educational reforms.

In the 1970s, the Guadalupe Organization's education ac-tivism shifted from concern about the safety of the physicalspaces of Frank School to the quality of the school's educa-tion and curriculum. The purposes of this activism weretwofold. The Guadalupe Organization not only strove toend discrimination based on students' home languages, butit also increasingly sought to create a culture of respect fordiverse cultures and languages. In the early 1970s, it beganto seek reforms that advocated students' rights to receivean equal education and to maintain their culture and theirnative language. The community increasingly fought forlanguage- and rights-based reforms through the mutually de-pendent processes of grassroots activism and litigation. Thisactivism and the reforms that Guadalupanos encouraged,particularly through Guadalupe Organization v. TempeElementary School District (1972), were a manifestation ofcultural citizenship, because the Guadalupanos demandedthe inclusion of their culture and language in schools asa guaranteed right of citizenship, based on the FourteenthAmendment to the Constitution.

asThe sense of outrage expressed by Garcia in this interview suggests that thisproblem was unique or at least uncommon in the district. Varbel, "An Inter-view with Lauro Garcia," transcript, November 19, 1973, CRC, SCASU, 23-24.

"'The construction of a new cafeteria, however, dragged on for years. TempeElementary School District School Board Minutes, Tempe Elementary SchoolDistrict, April 7, 1969 (p. 2), November 3, 1969 (p. 2), February 2, 1972 (p. 3).

58 WESTERN LEGAL HiSTORY VOL, 23, No. 1

WINTLRISPRINC 2010 BJLINGUAL EnucxrloN ACTIVISM 59

THE PLIGHT OF FRANK SCHOOL AND ITS STUDENTS

Socorro Hernandez Bernasconi led the quest for educationalreforms in Guadalupe. She was born in 1941 on the outskirtsof Guadalupe, and her family moved into Guadalupe after a firedestroyed their house.40 Although her mother, a Mexican im-migrant, allowed her and her siblings to speak English at schooland at work, they could speak only Spanish at home. This, alongwith a devout Catholic faith, promoted and strengthened cul-tural and linguistic pride in the HernAndez family. Bernasconiearned a degree in education from the University of Dayton in1967, which made her the first Guadalupano to receive a bach-elor's degree in elementary education.4 '

After receiving her degree, Bernasconi led summer andafter-school educational programs and church and commu-nity groups in Guadalupe. Soon thereafter, Tempe ElementarySchool District sponsored Bernasconi for a M.Ed. program inTexas that trained Hispanics with teaching experience to becounselors for Hispanic youth. After completing this program,she returned to work as a counselor at Frank School in 1970,where she quickly noticed that many things were amiss. Forexample, the district often rerouted Anglo students who weresupposed to attend Frank School to different schools.42 But shesaw the school's special education placement practices as themost urgent problem.

Special education provides self-contained classrooms and/orextra support for students with physical or mental handicapswhose needs cannot be fully met in ordinary classrooms. As ofthe 1970-71 school year, the Arizona Revised Statutes (ARS)already included mandates regarding the placement and evalu-ation of children in special education. The statutes requireda school administrator or special education coordinator tocontact a child's parents before referring the child to specialeducation and ordered biannual reviews of students' placementin special education.43 Bernasconi found that Tempe Elemen-tary School District and Frank School had ignored and violatedthese statutes. She found no records of the district's ever con-

"Jean Reynolds, "Bernasconi, Socorro Hernndez," in Latinas in the UnitedStates: A Historical Encyclopedia, ed. Vicki Ruiz and Virginia Sanchez Korrol(Bloomington, IN, 2006), 86.

"Leticia Hernandez, "Hernandez Family," 1987, CRC, SCASU, 6-7.

Ilbid., 13-15.

"Note that these ARS standards no longer exist. Arizona Revised Statutes 15-1013 and 15-1014, cited in Bernasconi, "The 'Why' of the Guadalupe Organiza-tion Special Education Lawsuit," 6-7.

WINTER/SPRING 2010 BILINGUAL EDUc.AxION ACTIVISM 59

tacting parents about a child's placement in special education.In fact, it appeared that the school psychologist alone made de-cisions about referrals and placements. Finally, Bernasconi dis-covered that the psychologist sometimes did not retest studentsuntil several years after their placement into special education.4Each of these findings violated the mandates of the ARS.

The district not only ignored state mandates, but it alsoplaced an abnormally large proportion of Mexican Americanand Yaqui students in special education. In 1971, Spanish-surnamed students comprised only 18 percent of the totalenrollment of Tempe Elementary School District, but theymade up 68 percent of enrollment in classes for the educablementally handicapped (those with mild impairments) and 46percent in classes for the trainable mentally handicapped (thosewith moderate to severe impairments).45 One school that didnot have a significant minority population had only one specialeducation student out of 800 enrolled students. In contrast, of740 students registered at Frank School in 1970, there were 45students enrolled in the special education program, 75 percentof whom were Yaquis. Frank School also had numerous stu-dents on a waiting list for special education.4 ' Often, if therewas not space in Frank School's special education program,students would be placed temporarily in regular classrooms,and they would be transferred to special education one to twoyears later without being retested.47 Additionally, Bernasconinoted that teachers and the psychologist voiced expectationsthat mental retardation was higher among Mexican Americanstudents, so the psychologist tested for mental retardation pri-marily at schools with large minority populations.

Although these practices were discriminatory, they weremerely sub-points in the case later filed by the Guadalupe Or-ganization against Tempe Elementary School District. Guada-lupanos argued fervently against the school district's impropermethods of testing students. Tempe Elementary School Dis-trict used the Wechsler Intelligence Scale for Children (WISC)test to determine which students the psychologist would referto special education, and the Guadalupe Organization claimedthat this was an unfair means of determining placement.49

"Ibid., 9-10."Guadalupe Organization, CIV 71-435.

"HernAndez, "Hernandez Family," 16; Bernasconi, "The 'Why' of the Guadal-upe Organization," 10- 11.4"Ibid., 9.

"Ibid., 8."Guadalupe Organization, CIV 71-435 at par. 23-26.

WESTERN LEGAL HISTORY VOL. 23, No. 160

Nationally, the emergence of intelligence tests coincidedwith World-War-I nativism, and schools used these teststhroughout much of the twentieth century. This 1949 excerptfrom New York Times Magazine demonstrates how stronglyintelligence tests influenced a child's future:

Between [fall 1949] and June [1950], 20,000,000 childrenwill be subjected to tests to measure their intelligence.This figure indicates the position of influence to which IQtests have risen in little more than a generation. . . . Theyare used in greater or lesser degree to determine when achild should begin to read, whether another should go tocollege, and if a third is likely to grow up to be a dolt or anEinstein-that is, whether he is "worth worrying about"or "simply beyond help."s0

Educators utilized these tests to direct students into differenttracks of education, and they often used the tests to rationalizeand support minority stereotypes. For example, educators drewon intelligence tests to prove that Mexican Americans had aninferior genetic makeup, which made them less academicallycapable than Anglos. Educators exploited these tests to "track"Mexican Americans and other minorities disproportionatelyinto vocational classes, instead of into a traditional academictrack. They often used this vocational track to "Americanize"non-Anglo students by teaching them English and other lifeskills.-" The American school system superimposed this Amer-icanization process on its students, because the nation valuedthe homogeneity of American identity. In Guadalupe, educa-tors used these tests to track students into special education.2

The WISC test used by Tempe Elementary School Districtwas inherently unfair to Guadalupano students for two reasons.First, most students entered Frank School speaking Spanish orYaqui, or both, but few of these students had even a limited

"'Benjamin Fine, "More and More, the IQ Idea Is Questioned," in New YorkTimes Magazine (September 18, 1949), 7, quoted in Valencia, Chicano Studentsand the Courts, 120-21.

"For a more detailed exploration of intelligence testing and tracking, seeGilbert G. Gonzalez, Chicano Education in the Era of Segregation (Philadelphia,1990). For IQ testing, tracking, and Americanization of Mexican Americans inArizona, see Laura K. Muioz, "Desert Dreams: Mexican American Educationin Arizona, 1870-1930" (Ph.D. dissertation, Arizona State University, 2006).For the connection between vocational education, testing, and tracking, seeValencia, Chicano Students and the Courts, 117-52.

"Guadalupe Organization, CIV 71-435.

WINTER/SPRINc 2010 BILINGuA-L EDUCATION ACTIVISM 61

grasp of English.i The school district psychologist, who knewneither Spanish nor Yaqui, administered the WISC test entirelyin English .54 Most minority students at Frank School were ex-posed to English only at school, but Tempe Elementary SchoolDistrict most frequently tested students in kindergarten andfirst grade before they gained even this limited exposure.55 TheWISC test was problematic for non-English speakers because itrequired understanding of English directions and verbalizationin English.6

Additionally, Mexican American and Yaqui students were ata profound disadvantage because the subject matter of the IQtests coincided with the dominant Anglo middle-class culture.The Guadalupe Organization claimed,

The most important source of knowledge for the child,particularly the pre-schooler, is his parents. Parentsobviously cannot teach more than they know.... Themiddle class parent spends more time with his childrenteaching what psychologists have termed the "hiddencurriculum." Thus the middle class Anglo-Americanchild is intensively tutored by his parents includingcorrection of speech, grammar, syntax, and style while hisMexican American counterpart has not yet been exposedto the English language. Thus any test relating to verbalskills is totally invalid as any indication of the learningability of such Mexican American children.,'

Not only were Mexican American and Yaqui children inher-ently underprepared to take these tests, but Tempe ElementarySchool District punished them for their scores on these unfairtests by placing them in special education classes. The Guada-lupe Organization argued that, if tested in their primary lan-guage, most of these children would not have been determinedto be mentally handicapped.'"

5 Bernasconi to regional director of the Office of Civil Rights, 14 May 1971,box 30, folder 4, CTDEP, CRC, SCASU.5'Bernasconi, "The 'Why' of the Guadalupe Organization," 9; Guadalupe Orga-nization, CIV 71-435; and Bernasconi to regional director of the Office of CivilRights, 14 May 1971, box 30, folder 4, CTDEP, CRC, SCASU.

"Albert Sitter, "Guadalupe Teacher Charges Retaliation," The Arizona Republic,August 18, 1971, 17-18, box 30, folder 9, CTDEP, CRC, SCASU.

"Bernasconi, "The 'Why' of the Guadalupe Organization," 5.

"Guadalupe Organization, CIV 71-435 at par. 24.

"Bernasconi, "The 'Why' of the Guadalupe Organization," 15,

WESTERN LEGAL HiSTORY VOL. 23, No. I62

Through their activism, Guadalupanos came to recognizethat a homogenous American culture and language was in factnonexistent and that Tempe Elementary School District neededto acknowledge and accommodate these differences. Theyunderstood that American citizens were diverse peoples with di-verse cultures and languages, and they wanted the public schoolsystem to recognize this diversity as valid and important. Thiscomprehension led Guadalupanos to develop an understandingof cultural citizenship, through which they advocated a newdefinition of citizenship that included language and culturalrights in their challenge to the education system,.

As Bernasconi became increasingly aware of these discrimi-natory acts, she notified school and district administrators ofthe problems, but she did not receive satisfactory responses.The district informed her that the placement and removal ofstudents from special education was not her responsibility.59 Si-multaneously, she alerted parents to these practices. Bernasconiand the Guadalupe Organization mobilized to increase par-ents' awareness of the school's mistreatment of their children.The Guadalupe Organization's bilingual newsletter instructedparents not to feel afraid or ashamed: "Parents should not signpapers unless they are positive they understand everything. Itis not shameful to say-leave me the paper, I'd like to showit to someone else before I sign." Additionally, the newslet-ter encouraged parents to go to the school to determine if theschool had placed their child in special education classes; iftheir child was so placed, then parents should demand that thechild be retested bilingually once each year.60 Some parentsthen requested that their children be withdrawn from specialeducation. Despite the Guadalupe Organization's attempts toincrease parental awareness, Tempe Elementary School Dis-trict dismissed these parental demands.'"

Tempe Elementary School District and many of its teach-ers believed that a student's poor performance on the WISCtest (and thus their supposed mental retardation) was thechild's problem and not the education system's or their own.They did not see their own failure to speak Spanish or Yaquias problematic.62 These assumptions by the school district andthe teachers reflected the nation's dominant notion of citizen-

'"Bernasconi to regional director of the Office of Civil Rights, 14 May 1971,box 30, folder 4, CTDEP, CRC, SCASU.

"'Guadalupe Organization newsletter, in the possession of Eric V. Meeks.

"'Bernasconi to regional director of the Office of Civil Rights, 14 May 1971,box 30, folder 4, CTDEP, CRC, SCASU.

*2Bernasconi, "The 'Why' of the Guadalupe Organization," 4.

WINTER/SPRING 2010 BILINGUAL EDUCArION ACTIVISM 63


ship; the educators saw the nation and thus the schools as amonolingual environment in which all students were expectedto know and use English. An expression of blame is clear ina 1971 meeting attended by Bernasconi; Robert Curry, as-sistant superintendent of Tempe Elementary School District;and Kay Murphy, director of special services, including specialeducation in Tempe Elementary School District. During thismeeting, Murphy suggested that Guadalupano children scoredlow on the WISC intelligence test because they were born towomen over the age of forty who did not seek adequate prena-tal care, were fieldworkers, and ate mainly beans and tortillas.Bernasconi informed Murphy and Curry that this image wasa portrait of her own mother, and that, despite her mother's ful-fillment of this stereotype, Bernasconi herself had turned outfine, even earning bachelor's and master's degrees.63

In addition to intelligence testing, a related trend was that ofdeficit thinking, the idea that students, particularly non-Anglosfrom low-income backgrounds, tend to fail in school because ofthe internal deficits or failures of these students and their fami-lies.6 4 Deficit thinking blames the victim instead of exploringthe effects of institutional structures and inequities in educa-tion.6 ' Extending the idea of deficit thinking-an idea based ona monolingual and monocultural definition of citizenship-tolanguage and culture, educators assumed minority studentswere both linguistically and culturally deficient.66 Furthermore,deficit thinking served as a rationale for the Americanizing,homogenous curriculum of public schools.6 1 Justifications forthe overrepresentation of minority students in special educa-tion classrooms and related assessment procedures were oftenrooted in deficit thinking.68

'Hernandez, "Hernandez Family," 16; and Christine Marin, "From the Cess-pool to Equality: The Tempe Elementary School District No. 3 and Guadal-upe," CRC, SCASU, 11.

,"Guadalupe San Miguel, Jr., and Richard R. Valencia, "From the Treaty of Gua-dalupe Hidalgo to Hopwood: The Educational Plight and Struggle of MexicanAmericans in the Southwest," Harvard Educational Review 68:3 (Fall 19981:368; Richard R. Valencia, The Evolution of Deficit Thinking: EducationalThought and Practice (New York, 1997), xi.

"San Miguel, Jr., and Valencia, "From the Treaty of Guadalupe Hidalgo toHopwood," 368.

660ctaviana V. Trujillo, "The Yaqui of Guadalupe, Arizona: A Century ofCultural Survival Through Trilingualism.," American Indian Culture andResearch Journal 22:4 (December 1998): 55.

,'Valencia, The Evolution of Deficit Thinking, 80.6'Valencia, Chicano Students and the Courts, 149-50.

VOL. 23, No. I64

Typical of institutions that rationalized their actions withnotions of deficit thinking, Tempe Elementary School Districtdiscriminated against minority students, refused to acknowledgethe district's responsibility for fair assessment and equitableeducation, and ignored parental, faculty, and staff concerns.This left Guadalupanos at a crossroads, needing to decide howto proceed.69 Guadalupanos chose to litigate, which enabledthem to create a binding legal document with Tempe Elemen-tary School District and the state of Arizona. The Guadalupa-nos' litigation was firmly rooted in their grassroots activismand the conception of cultural citizenship that this activismhelped them to develop. Through their lawsuit, Guadalupa-nos asserted the idea that American citizenship should notrequire a person to be monocultural or monolingual. Theycontended that full membership and belonging in the UnitedStates nation-state should be available to all citizens, regard-less of one's identity. Although Guadalupanos were challengingthe traditional conception of American rights, their activismwas still an act of citizenship, because they were demandingacceptance as citizens with a different, but legitimate, cultureand language.

THE LAWSUIT

On August 10, 1971, Jerry Levine of the Maricopa Legal AidSociety filed a class action lawsuit in the United States DistrictCourt for the District of Arizona on behalf of the GuadalupeOrganization, nine parents, and twenty-seven children againstTempe Elementary School District, the Arizona superintendent,the Arizona State Board of Education, the Tempe ElementarySchool District superintendent, the Tempe Elementary SchoolDistrict Board of Education, Kay Murphy (director for specialservices at Tempe Elementary School District), Margaret Fauci(the district psychologist), Andres Avila (the Frank School prin-cipal), and three other district figures10 The plaintiffs includedtwo groups of students. The first group consisted of twelveMexican American and Yaqui students who were from homesthat mainly (or entirely) spoke Spanish and/or Yaqui and who

"Cecilia Teyechea Denogean de Esquer, rough draft of paper on Guadalupe,CTDEP, CRC, SCASU, 38.

"The lawyers did not specify statistics of plaintiffs, including ethnicity (Yaqui v.Mexican American), socioeconomic status, ages, grades, or IQs. Valencia, Chi-cano Students and the Courts, 358.


were currently in special education classes." The second groupincluded seventeen preschool-age students who were of similarracial, ethnic, and linguistic backgrounds to the first group andwho would be taking IQ tests in the near future. Additionally,the plaintiff class consisted of all similarly situated children inArizona, including Mexican American and Yaqui children whowere currently in special education classes, and preschool-ageand other young Mexican Americans and Yaquis who wouldsoon be given IQ tests and would "thus be in substantial dan-ger of placement in a class for the mentally retarded, regardlessof their ability to learn."7 2 Therefore, this case was poised toaffect the educational experience of all Mexican American andYaqui students in Arizona.

Guadalupe Organization v. Tempe Elementary School Dis-trict charged Tempe Elementary School District et al. with ra-cial and ethnic discrimination and denial of the Guadalupanos'right to receive an education, as dictated by the due processand equal protection clauses of the Fourteenth Amendment.3

It also claimed that the children suffered from "the immedi-ate and irreparable injury of a grossly inadequate educationand the stigma attached to the label of mental retardation."4

The Guadalupe Organization argued, "Placement in a class forthe mentally handicapped is tantamount to a life sentence ofilliteracy and public dependence. . . . Placement in classes forthe mentally handicapped sharply limits plaintiffs' opportuni-ties for future education and employment."' The organizationasserted, "It is therefore of paramount importance that no childbe placed in such a class unless it is clear beyond reasonabledoubt that he cannot be educated effectively through regularclassroom instruction."76 The organization proceeded withnine demands, including that Tempe Elementary School Dis-trict halt placement of Spanish-speaking or bilingual childrenin special education, test plaintiffs bilingually, and provide

"Valencia notes that the complaint was later amended to add two more studentsto this group. Many of the children listed as plaintiffs were siblings. Ibid., 143.

'Ibid., 143-44.

` 3Brown v Board of Education asserted that the equal protection and due processclauses of the Fourteenth Amendment guaranteed all students the right to re-ceive an education. Because Brown endowed the Fourteenth Amendment withthis connection to educational rights, it commonly has been used in education-al litigation. Guadalupe Organization, CIV 71-435; Brown v. Board of Educa-tion, 347 U.S. 483 (1954); Valencia, Chicano Students and the Courts, 167.

Guadalupe Organization, CIV 71-435 at par. 31.

71Ibid., par. 21.

'61bid., par. 21.

66 WESTERN LEGAL HiSTORY VOL. 23, No. I

these students with "intensive supplemental bilingual andbicultural training in language and math" to help them achieveparity with their peers.7

Filing this case was an act of cultural citizenship, becausethe Guadalupanos were fighting for official recognition of Mex-ican American and Yaqui cultures and languages by the schooldistrict and the state. The Guadalupe Organization contendedthat not all American citizens shared the same language andculture, and that an essential part of citizenship was the right tolinguistic and cultural difference. This position was in direct op-position to the majority Anglo concept of a monolithic nation ofpeople sharing the same American language and culture.

Public opinion of this case, which mirrored national opin-ions of bilingual education, assimilation, and desegregation,was largely divided. Some articles expressed a combative-sometimes even nativist-opinion. One article in the TempeDaily News criticized Guadalupano activism using harsh lan-guage that clearly expressed an "us versus them" mentality:

The attorney who handles [the Guadalupe Organization]case works with Legal Aid, an organization supported bypublic funds-yours and ours. Guadalupe Organization isfunded by federal funds-yours and ours. The defendantSchool District and officials (except board members) areon the public payroll-supplied by local folks. And allcourt costs . .. likely will come from public coffers. Ifyou'll note further, apparently Guadalupe Organizationdoesn't have to pony-up a penny in all this fuss (See whywe're so sick and tired of this activity?)."

This discourse denied the Guadalupanos' legitimate claim tothis money and also took a deficit thinking approach by patron-izing and blaming Guadalupanos:

In the past, Guadalupe has complained about kids goingto Tempe High School; about bringing Junior HS kidsinto town. They've yakked about facilities, and theyhave a nearly new plant that they've already set afire andcontinually vandalize. Sheriff's deputies are often unsafe

'Ibid., par. 33.

""Fount for Ulcers," Tempe Daily News, September 9, 1971, box 30, folder 4,CTDEP, CRC, SCASU. Emphasis in original.

WINTER/SPRING 2010 BILINGUAL Ei)UCATION Acrivism 67

patrolling the area. . . . Isn't it about time to call a halt-to stop the foolishness and public expense?9

This strong language leaves little doubt as to how some citi-zens felt and demonstrates that many citizens saw Guadalupeas a serious threat to the status quo of assimilating, monolin-gual education.

However, other Phoenix- and Tempe-area citizens advocatedfor the Guadalupanos. In The Arizona Republic, Leo Mufioz,the director for special services for minority groups at MesaCommunity College, claimed that schools had misplaced atleast one-third of non-English-speaking students in special edu-cation programs in Arizona. He explained, "The tests do notreally tap the intellectual potential of an individual who comesfrom an ethnically different background."80 Also supporting theGuadalupe Organization, Dr. Wayne Maes, a bilingual psychol-ogist and professor of counseling and educational psychologyat Arizona State University, retested thirteen Spanish-speakingchildren in Guadalupe and found five of them unjustly assignedto special education classes. Additionally, he discovered threeof them to be borderline students (they may have been placedincorrectly) and five to have been psychologically damaged bytheir wrongful placement in special education."' These exam-ples suggest that there were at least pockets of outside supportfor the Guadalupano cause and educational issues.

Although some Arizonans supported bilingual education,many occupied a reluctant middle ground.12 In a 1974 interview,W.P. Shofstall, the Arizona state superintendent of education(1969-75), claimed that he was "much more interested inbicultural education than [in] bilingual education," offeringexamples of why bilingual education was unnecessary.3 How-ever, he seemed to approve of assimilative bilingual education:"I think that if to the extent that bilingualism means respect-ing the culture of a child and respecting the fact that the child

9Note that the Tempe High School was not part of Tempe Elementary SchoolDistrict. Ibid. Emphasis in original.

""Retarded Tag Is Unjustified," The Arizona Republic, September 10, 1971,box 30, folder 4, CTDEP, CRC, SCASU.

"Ibid; and Marn, "From the Cesspool to Equality," CRC, SCASU, 14-15.

82For examples of neutral articles, see "The Guadalupe Suit," The Phoenix Ga-zette, April 13, 1971, box 30, folder 4, CTDEP, CRC, SCASU; and Albert J. Sitter,"Guadalupe Teacher Charges Retaliation," The Arizona Republic, August 18,1971, 17-18, box 31, folder 9, CTDEP, CRC, SCASU.

'-W.P. Shofstall, interview by John Bury, October 1974, John Bury Collection,Cline Library Digital Archives, Northern Arizona University, Flagstaff, Arizona.


doesn't understand and treating them as an individual, thenwe've got to have more of it." 4 Despite his limited supportfor assimilative bilingual education, there is no evidence ofShofstall advocating for Guadalupanos.

This reluctance to support and adopt programs of bilingualeducation was a national trend in the 1970s. Educators and pol-icymakers continually debated whether the appropriate role ofbilingual education was one of preparing students for academicachievement in a mainstream English-speaking classroom orone of language learning, cultural development, and pluralism.Because of the controversy, many schools throughout the 1970swere unsure of the appropriate stance to take on the issue.15

Surely, there must have been dissent within Guadaluperegarding these reforms. Bernasconi was a Mexican American,and other historical works reference tensions between MexicanAmericans and Yaquis in Guadalupe.16 However, I have foundno differences of opinion recorded in the Guadalupe community.This lack of recorded dissent may be because outside newspa-pers (for example, The Tempe Daily News, The Phoenix Gazette,The Arizona Republic) quoted only Socorro Bernasconi, herhusband Santino, and the legal staff. Unfortunately, no reportersurveyed public opinion in Guadalupe. In addition, the archivedcorrespondence regarding this case is between the Bernasconis,the legal staff, and Tempe Elementary School District.

Dissent can be inferred from the number of students listedas plaintiffs in the case. Of the twenty-seven students repre-sented, seventeen were of preschool age or had not yet beentested by Tempe Elementary School District, and were plain-tiffs in a preventive sense-their families wanted to avoid theirmisplacement into special education classes.17 Therefore, morethan thirty special education students at Frank School andtheir families did not participate in this class action lawsuit.Their non-involvement could be for several reasons: perhapsthe parents felt that the students were fairly placed, did notclearly understand the issues, feared retaliation from FrankSchool and Tempe Elementary School District, or were toobusy or preoccupied to care or get involved, among other poten-

'"Ibid.

"San Miguel, Jr., Contested Policy, 30-46.

"See, for example, Meeks, "The Yaqui of Guadalupe" and Meeks, "Cross-Ethnic Political Mobilization and Yaqui Identity Formation in Guadalupe,Arizona."

"Although the case has only twenty-seven plaintiffs, two more students werelater added with an amendment to the case. Valencia, Chicano Students andthe Courts, 143.

69wlNTER/SPRING 2010 BILINGUAL EDUCATION ACTIVISM

tial issues. The low educational attainment of parents, family,and community members in Guadalupe may also have contrib-uted to the decision of some families not to participate in thiscase. However, regardless of their motivations, their lack ofinvolvement suggests that education equality issues were nota priority for all Guadalupanos. It is also clear that because thesuit represented both Mexican American and Yaqui students,the case's supporters were not split by a simple ethnic/racialdivide. This suggests that, on this issue at least, Guadalupanoparents had a shared interest and anticipated the GuadalupeOrganization's success in this case.

On January 24, 1972, lawyers for both parties filed stipu-lations for settlement. The settlement commanded TempeElementary School District to reevaluate students with non-English native languages who were in special education programsand to restore students to regular classes on or before October1, 1973." It also changed the placement process, requiring thedistrict to ascertain if a student's primary language was notEnglish. If so, it obliged them to follow at least one of the follow-ing procedures when evaluating students: (1) use a psychologistwho is fluent in English and the child's dominant language; (2) usean interpreter to assist the psychologist in testing students; or(3) "use test instruments which do not stress spoken languageand which are considered valid and reliable measures of intel-ligence functioning."9

Additionally, the settlement mandated a variety of criteriafor the assessment and placement of special education students.First, it established requirements for placement in specialeducation programs, including that intelligence tests could notbe the exclusive or primary screening device for special educa-tion. It also required an examination of adaptive behavior in astudent's development history, cultural background, and schoolachievement, all of which must substantiate other findingsof educational handicaps. In addition, it stipulated that to thedegree possible, the school should include the child within theregular classroom. The settlement required the involvement ofparents in the evaluation process, and it necessitated writtenparental consent before placing children in special educationclassrooms. It stipulated that all communication with parentsmust occur in their primary language.90 Finally, it mandatedthat when school districts or individual schools had drastically

"Jerry Levine, Arizona Settlement of Special Education Lawsuit, January 24,1972, par. 4, 5i, box 30, folder 10, CTDEP, CRC, SCASU."Ibid., par. 4.

"Ibid., par. 5abdefg.

70 WESTERN LEGAL HiSTORY VOL. 23, No. I

disproportionate racial, linguistic, or ethnic groups representedin their special education classes, they "should be prepared tooffer a compelling educational justification for such dispropor-tionate enrollment."9'

Although the plaintiffs largely achieved their goals, theyfailed to make sure the settlement included damages and at-torney's fees, intensive supplementary bilingual and biculturaleducation, and a new IQ test standardized to non-Anglo cul-tures. Despite these failures, the case was mostly a success. Itprovided Guadalupanos with an opportunity to exercise theirrights of citizenship by advocating for equality and their edu-cational rights. Most importantly, it improved the educationalexperiences of Guadalupano children and children throughoutArizona and even the nation.

Guadalupe Organization v. Tempe Elementary SchoolDistrict built on Diana v. State Board of Education (1970)and Covarru bias v. San Diego Unified (1971). Both Diana andCovarrubias had also been filed in federal district courts andresulted in settlements. These cases first established students'rights to be tested in their own language or nonverbally, andcreated a requirement for parental consent before students areplaced in special education classes.92 Richard Valencia, an edu-cational psychologist, suggests a link between a 1970 memofrom the Office of Civil Rights and the Diana settlement. Thismandate stipulated, "School districts must not assign nationalorigin minority-group students to classes for the mentallyretarded on the basis of criteria which essentially measure orevaluate English language skills."9- This unprecedented man-date was the first national document that specified that this typeof placement denied students an equal education opportunity.

Because Guadalupe was settled instead of litigated, it isimpossible to know if or how the Diana or Covarrubias settle-ments or the Office of Civil Rights memo contributed to theGuadalupe settlement. However, it is likely that the lawyers ofGuadalupe were aware of the Diana and Covarrubias settle-ments, because continuity exists between these cases. All threecases were filed as class action lawsuits representing not onlya concrete group of students but also all bilingual children whowere currently placed in special education classrooms and allbilingual preschool students who were in danger of misplace-ment into special education classrooms. Additionally, the Four-teenth Amendment, the Elementary and Secondary Education

%fbid., par. 5c.

'Valencia, Chicano Students and the Courts, 79-116 passim.

""Memo from Office of Civil Rights, May 25, 1970. Quoted in ibid., 138.


Act, and state laws were the fundamental justifications forboth Diana and Guadalupe.9 4 While all three cases representedMexican Americans, Covarrubias and Guadalupe also includedAfrican Americans and Yaquis, respectively.9

Covarrubias and Guadalupe furthered Diana's legal strate-gies and claims for injunctive and declaratory relief. Valencianotes three ways in which Covarrubias advanced beyond theDiana case and settlement. First, Covarrubias claimed that themisplacement of students led to their stigmatization as slowlearners and lesser individuals. Covarrubias noted,

The stigma attached to the EMR [Educable MentallyRetarded] notations on plaintiffs' records and thewidening gap in actual learning combine to effectivelydeny plaintiffs any practical chance to realize theirpotential in college, in armed forces' officer programs, inexecutive or management programs, or in various otherareas of society through which members of minorityracial groups have sought and been able to lift theirstandards socially and economically and to share part ofthe American dream of self realization and self help for abetter life. .6

The lawyers explained that other children in and out of schoolhad taunted the plaintiffs because the plaintiffs were in specialeducation classes. Thus the plaintiffs' wrongful placement inspecial education led to their feeling "a profound sense of guiltand shame over being considered second rate and inferior intheir achievements and learning."9 ' The lawyers concluded byarguing that this taunting "makes their adjustment to life andto school and to their role as so-called slow learners more dif-ficult and introduces psychological problems into their alreadyproblem laden experience."9

941n contrast, Covarrubias cited the Civil Rights Acts of 1870, 1871, and 1964, bas-

ing their argument more on equal opportunity and racial discrimination. Perhapsthese avenues of argument were more open to the lawyers in Covarrubias becauseof the clear racial difference acknowledged with African American students.

"African Americans were similarly seen as discriminated against because oftheir low socioeconomic status and their "Black-English" dialect.

"^Complaint for Damages, for Injunction and for Declaratory Relief (CivilRights), Covarrubias, Civil Action No. 70-394-T, 13-14, quoted in Valencia,Chicano Students and the Courts, 140-41.

9Ibid.

"ILbid.

72 WESTERN LEGAL HiSTORY VOL. 23. No. I

Guadalupe advanced this claim of stigmatization, whichwas reinforced outside of the schools by the ethnic, economic,linguistic, and racial bias already faced by most Guadalupanos.Even within Frank School, some Guadalupano children stig-matized others, as is evident in oral histories of Guadalupanos.For example, Alberto Tavena remembers being called a "dirtyYaqui" by other Guadalupano children when he started school.Juan Tavena connects his lack of education to his continuedimpoverishment throughout his life.9" The stigmatizationcaused by misplacing students in special education likely com-pounded the negative effects of racial, ethnic, linguistic, andeconomic stereotypes.

These claims of stigmatization directly related to the secondsignificant advance in the Covarrubias settlement, in whichlawyers argued for the payment of monetary damages toplaintiffs: "The wrongful placement and retention of plaintiffsin EMR classes will inevitably result in their being cut offfrom economic gains available to children in regular schoolclasses and will cut them off from any chance to be gainfullyemployed. . . . [Ejach plaintiff has been damaged far in excessof $10,000." oo Guadalupe, which later adopted this argument,and Covarrubias both resulted in awards of one dollar in mon-etary damages, symbolically marking their victories but notcompensating students for the real damage caused by their mis-placement. As the third significant advance, Covarrubias-andlater Guadalupe-furthered Diana's legal strategy by arguingthat when the school districts did not inform parents of theirchildren's special education placement, the district impededboth child and parental due process.'0'

Guadalupe built on Diana and Covarrubias in several ways.First, Guadalupe listed Margaret Fauci, the district psycholo-gist who tested and placed these students in special educationclassrooms, as a defendant in the case. Educational psycholo-gist Richard Valencia notes that this was a "potent tactic."He explained, "[G]iven that the school psychologist does theclinical assessment and recommends placement in a class forthe mentally retarded, it appears that plaintiffs strengthenedtheir case by placing some of the culpability for inappropriatediagnosis at the level of the individual school psychologist."0 2

"9Catheryn Retzclaff Shaffer, "Preservation of Yaqui Language and Culture inGuadalupe, AZ" (M.A. thesis substitute, Arizona State University, 1986), 30-31.

"ooCovarrubias, Civil Action No. 70-394-T, quoted in Valencia, Chicano Stu-dents and the Courts, 141.

"Ibid., 140-43.

"Itbid., 358.

WINTER/SPRING, 2010 BILINGUAL EDUCATION ACTIVISM 73

It seems fair that Fauci received blame, since she was largelyin control of the discriminatory assessment and placementpractices. In addition, Guadalupe went beyond Diana andCovarrubias by demanding "intensive supplemental bilingualand bicultural training in language and mathematics to allow[plaintiffs] to achieve parity with their peers as soon as pos-sible," a demand that the settlement did not account for.0'

The Guadalupe settlement also established a cut score forintelligence tests, which defined which test scores meritedplacement in special education. In addition, the settlementstated, "[I]ntelligence tests shall not be either the exclusive orthe primary screening device in considering a child for place-ment in classes for the handicapped."'"" Finally, the Guadalupesettlement required the assessment of adaptive behavior priorto special education placement, which necessitated the evalu-ation of a child in outside environments such as the home. "All of these changes made it considerably less likely for non-native-English speakers to be misplaced into special education.Despite these advances in the Guadalupe argument, the caseclearly built on both Diana and Covarrubias.

THE LONG-TERM RESULTSAND IMPLICATIONS OF GUADALUPE

Because none of these cases was litigated, they could notbe used as legal precedent, but all three influenced state andfederal regulations governing the assessment and placementof special education students. In particular, these cases led tothe 1975 creation of Public Law 94-142, the "Education for AllHandicapped Children Act" (EHA), which functioned as theequivalent of civil rights legislation for handicapped children.This legislation required non-biased assessment practices, stat-ing that "testing and evaluation materials and procedures usedfor the purposes of evaluation and placement of handicappedchildren must be selected and administered so as not to beracially or culturally discriminatory."'6 The EHA contained

"Guadalupe Organization, CIV 71-435 at par. 33; Valencia, Chicano Studentsand the Courts, 143-45.

"'Stipulation and Order, Guadalupe Organization, CIV 71-435 at 3-4, cited inValencia, Chicano Students and the Courts, 145."Valencia, Chicano Students and the Courts. 146,

6P.L. 94-142 (19751, (42 FR. 42496, §121a.530,b), cited in ibid., 148. Empha-sis added.

74 WESTFRN LEGAL HiSTORY VOL. 23, No. 1

many of the concessions won in these three cases, includinginformed consent and due process, testing in a student's nativelanguage, annual review of students, and placement decisionsbased on multiple sources of information, including adaptivebehavior, by a multidisciplinary team and the student's par-ents.00 In 1990 the EHA was revised and renamed the Individu-als with Disabilities Act (IDEA). Since then, IDEA has beenrevised and amended several times, and remains the primaryfederal legislation granting rights to special education studentsand to those who might be misplaced in special education be-cause of language and cultural differences.

Guadalupe also instigated similar changes in Arizona's statelegislation, guaranteeing the rights of minority-language stu-dents and fair placement into special education classrooms.108

Albeit somewhat indirectly, the Guadalupanos changed howthe state defined education rights and, through this, redefinedcitizenship rights. By expanding the rights of non-Englishspeakers, the government was, in a sense, respecting diversityin a way that it had not previously.

Additionally, the Diana, Covarrubias, and Guadalupe casesand settlements led to a revision of special education standards,definitions, and assessment practices. The Guadalupe settle-ment also may have influenced the American Association ofMental Deficiency's 1973 revision of its Manual on Terminolo-gy and Classification in Mental Retardation. Richard Valencia,an educational psychologist, remarks that the manual adoptsthe same cut score standard as is found in the Guadalupesettlement. In addition, the 1973 edition of the manual placedgreater emphasis on measuring adaptive behavior in additionto measuring intelligence, which was a new development inGuadalupe. Although Valencia notes that there is no directevidence to suggest that the manual was influenced by theGuadalupe decision, he suggests that the similarities were toogreat to be a coincidence." Finally, he proposes the followingquote from the manual to evidence the possible influence ofGuadalupe and other right-to-education litigation of the 1960sand 1970s:

All psychological tests measure samples of behavior,and behavior is influenced by the culture in whichan individual resides. Deficits that emerge in testperformance are often reflected in school work, job

"aibid., 148-49.

to*Bernasconi, "The 'Why' of the Guadalupe Organization," 16.

"'Valencia, Chicano Students and the Courts, 146-47.

75WINTEn/SPRING 2010 BiLINGUAL EDUCATION ACTIVISM

performance and other major life functions. To impugntests because of their presumed cultural bias is toconceal the effects of cultural disadvantage, impederemedial action and solution of social problems. Thisalleged limitation of intelligence tests could in fact beits major value in assessing a child's performance in hisown culture. This application of tests across cultures,however, unless properly standardized, is likely to leadto serious errors in individual diagnosis and the rates ofmental retardation.1 o

These references to the consideration of a student's cultureduring creation and administration of assessments once againserves as a reminder of the cultural and linguistic discrimina-tion challenged by these cases.

Today, special education textbooks and school psychologistguidebooks still cite the Diana and Guadalupe settlements asimportant cases related to the misclassification of ethnic mi-nority students."' These texts and guides offer a brief summaryof Diana and Guadalupe and often mention the significance ofthese cases. Additionally, several of these texts link Guadalupeto entries about adaptive behavior assessment, bilingual andbicultural education, and consent decrees (the type of settle-ment reached in Guadalupe)."2 Each text's treatment of thesecases is remarkably similar, varying only in points of emphasisand in length (one paragraph to two pages). The continued cita-tion of these cases indicates their significance in recent battlesfor minority education rights, particularly in their attempts torectify the persistent overrepresentation of minority studentsin special education classrooms.

In addition to affecting state and national policies anddefinitions, the local results and implications of Guadalupe(1972) were numerous. Before the settlement, Guadalupecitizens accused Tempe Elementary School District of retali-

"Herbert Grossman, Manual on Terminology and Classification in MentalRetardation (Washington, DC, 1973): x, cited in ibid., 147. Emphasis added.

"'Curiously, the Covarrubias settlement is rarely included in these texts.Fletcher-Janzen and Reynolds, Concise Encyclopedia of Special Education,316-17; Jacob and Hartshorne, Ethics and Law for School Psychologists, 134;Robert L. Rhodes, Salvador Hector Ochoa, and Samuel 0. Ortiz, AssessingCulturally and Linguistically Diverse Students (New York, 2005), 44; Cecil R.Reynolds and Randy W Kamphaus, Handbook of Psychological and Educa-tional Assessment of Children (New York, 2003), 60; T. Steuart Watson andChristopher H. Skinner, eds., Encyclopedia of School Psychology (Basel, Swit-zerland, 2004), 152-53.

"'For example, see Fletcher-Janzen and Reynolds, Concise Encyclopedia of Spe-cial Education, and Watson and Skinner, Encyclopedia of School Psychology.

76 WESTERN LEGAL HiSTORY VOL, 23. No. 1

WINTER/SPRING 2010 BINULEUCINATVSM7

Socorro Hernandez Bernasconi, the first Guadalupano to receivea bachelor's degree in elementary education, led the quest foreducational reforms in Guadalupe. (Photo by Dorothea von Haeften,courtesy of the Petra Foundation)

77WINTER/SPRING 2010 BILINGUAL EDUCATION ACTIVISM

ating against them for filing this suit. First, school counselorSocorro Bernasconi claimed that soon after the case againstTempe Elementary School District was filed, the district nolonger allowed her to counsel the special education children(including those whom she had been counseling all year), orto access the special education files or retest results, and shewas not informed of any new special education placements.She believed that "all these punitive measures are a result ofmy discovery of the discriminatory practices and poor admin-istrative policies of the District."'13

Tempe Elementary School District transferred Bernasconi toa school with a predominantly Anglo population for the nextschool year. The school district justified this transfer by claim-ing it was related to funding issues. Accusing the district of dis-crimination and retaliatory measures, Bernasconi argued thatthe district disregarded her preferences and specific trainingas a counselor for Mexican American students. After pursuingthis matter for approximately twenty months through othermeans, Bernasconi filed a lawsuit against Tempe ElementarySchool District. After the suit was dismissed by the district ofArizona, the United States Court of Appeals ruled that Bernasconi'sfree speech was protected and that funding problems werenot the sole reason for her transfer.114 Despite this favorablefinding, she received no reparations until 1979, when TempeElementary School District finally offered her a job and $10,000in court costs, which she claimed did not nearly cover the costsincurred during the six-year battle."

Additionally, Tempe Elementary School District retaliatedon September 18, 1971, when its board of trustees denied theuse of school facilities throughout the district for all non-school-district uses and then required reapplication to theboard for new facility-use proposals."6 Prior to this decision,the Guadalupe Organization had used the Frank School facili-ties during non-school hours for adult education programs, andother Tempe organizations utilized different Tempe Elementa-ry School District schools for fundraising and other educationalpurposes. The school district used the reapplication processto deny the Guadalupe Organization the use of Frank School's

"Bernasconi to regional director of the Office of Civil Rights, 14 May 1971,box 30, folder 4, CRC, SCASU.

"'Bernasconi v. Tempe Elementary School District, No. 3, 548 E2d 857 (1977).

"'Ann Johnson, "Battle Brings Partial Victory," The Phoenix Gazette, July 4,1979, box 31, folder 9, CTDEP, CRC, SCASU.

I"Tempe Elementary School District No. 3, Board of Trustees Minutes, Sep-tember 18, 1971, box 30, folder 7, CTDEP, CRC, SCASU.

78 WESTERN LEGAL HiSTORY VOL. 23 NO. I

facilities, while simultaneously permitting all other previousoutside uses of the district's schools. This was particularlyharsh because the Guadalupe Organization's adult educationprogram in Frank School sought to remedy the low educationattainment among Guadalupanos." The Guadalupe Organiza-tion asserted that this denial of facility use was retaliatory andfiled a suit against Tempe Elementary School District claimingdeclaratory and injunctive relief. The organization claimed thatit had been permitted to use the school facilities free of chargefor five years before it filed the first case against the district in1971.11 The district eventually rented the space to the Guada-lupe Organization for one dollar to settle the situation."'9 Theone dollar settlement represented an affirmation of the dis-trict's power, while still providing a compromise to the Guada-lupe Organization.

Guadalupe not only changed district procedures but also ledto reforms in the state's legislation that granted further edu-cational rights to bilingual and minority students in Arizona.The legislation required schools to test students in their homelanguage, notify parents in their home language, and create spe-cial education placement permission slips with the student'sestimated date of removal from special education.0 Addition-ally, Tempe Elementary School District removed all but one ofthe plaintiffs from special education classes at Frank School,returning these students to regular, mainstream classrooms121

Although no direct link between the settlement and thecreation of the Mexican American Educational Advisory Com-mittee (MAEAC) is evident, the Tempe Elementary SchoolDistrict board of trustees created this advisory committee inthe same month as the school district's lawyers settled the1972 case. The board of trustees formed the advisory commit-tee to use the "talents of the Mexican-American communityas allies in the struggle towards quality education." 2 2 Until

IMeeks, "The Yaqui of Guadalupe," 102.

"'Guadalupe Organization v. Tempe Elementary School District, No. 3, Retali-ation Suit [n.d.), box 30, folder 7, CTDEP, CRC, SCASU."'Tempe Elementary School District Board of Trustees Minutes, box 30, folder 7,CTDEP, CRC, SCASU.

'2"Bernasconi, "The 'Why' of the Guadalupe Organization," 16.

"''Tempe Elementary School District, No. 3, Settlement of Special EducationLawsuit, April 24, 1972, CTDEP, CRC, SCASU. Note that the one student whowas not removed from special education stayed at the request of her parents.

m) "Organization of a Mexican-American School-Community Committee," apaper submitted to O.S. Fees by his administrative assistant, January 10, 1972, 6.Quoted in Cecilia de Esquer, "The MAEAC," handwritten notes, box 30, folder 4,CTDEP, CRC, SCASU.

WINTER/SPRING 2010 BILINGUAL EDUCATION Acrivism 79


its demise seventeen months later, the advisory committeefought vigorously for students' rights, fair desegregation poli-cies, and bilingual and bicultural education. Finally, Guadalupeempowered Guadalupanos, proving they could successfullyfight for their rights. Even though the litigation ultimatelyled Socorro Bernasconi to file her 1973 lawsuit for wrongfultermination, the victory likely encouraged her to realize thatshe could achieve similar success through litigation. WhileGuadalupe achieved several tangible successes at the local,state, and national levels, it also paved the way for future activ-ism in Guadalupe, such as the second class-action lawsuit thatthe Guadalupe Organization filed against Tempe ElementarySchool District in 1973, demanding an additional program ofbilingual and bicultural education.2-

3

CONCLUSION

The Guadalupe Organization and Guadalupano citizensused both litigation and grassroots methods of reform. Theyattempted to employ grassroots methods first, sometimes onlywith limited success, such as Bernasconi's attempts to makechanges at the school and district levels. Other grassrootsactions were more successful. For example, Guadalupanosresisted Tempe Elementary School District's desegregation bycreating a school that would protect not only their students butalso their culture and language.12 4 Guadalupanos created ItomEscuela ("Our School" in Yaqui and Spanish), a private, trilin-gual school for their children. I'tom Escuela taught studentscommunity involvement and pride in their languages and cul-tures along with more traditional school subjects. Although theschool was successful in resisting unfair desegregation policiesand instilling linguistic and cultural pride in students, I'tomEscuela closed after ten years because of funding problems.MAEAC had some limited successes. It continually pushed theTempe Elementary School District board of trustees to fulfillits promises to create a supplemental program of bilingual andbicultural education, and it also advocated for minority stu-dents and promoted the Guadalupanos' languages and cultures.

"Guadalupe Organization, Inc. v. Tempe Elementary School District, No. 3,587 F.2d 1022 (1978) [hereinafter cited as Guadalupe v, Tempe School District,No. 3 (1978)].

"^Octaviana Trujillo, "A Tribal Approach to Language and Literacy Developmentin a Trilingual Setting," in Teaching Indigenous Languages, ed., Jon Reyhner(Flagstaff, AZ, 1997); and Trujillo, "The Yaqui of Guadalupe, Arizona."

Vot. 23, No. Iso0

Thus, Guadalupanos' grassroots reform and activism met withmixed results overall.

Elsewhere in Arizona and throughout the Southwest, MexicanAmericans and American Indians used forms of grassroots ac-tivism that were similar to that of the Guadalupanos to effecteducational change. For example, the American Indian com-munity organized to improve education in Phoenix, seekingreform through the school board in the Phoenix Union HighSchool system. After a near-riot during a community schoolboard meeting in 1973, the administration began to supportAmerican Indian initiatives, including hiring American Indiancounselors and learning how to obtain federal monies to sup-port American Indian programs."2 Within Tempe ElementarySchool District, Guadalupanos also worked to incorporatecurriculum and programs for students, institute culturallyrelevant professional development for teachers, and even adoptprograms that taught Guadalupanos about Yaqui history andculture.'26 In addition, Guadalupanos created a Head Startprogram for preschoolers, which emphasized trilingualism andGuadalupano history and culture in its curriculum.2 1

Throughout the Southwest, Chicanos and other groupsfrequently sought reform at the grassroots level through pro-tests and school boycotts. For example, Mexican Americans inPhoenix boycotted for increased hiring of Chicanos and a moreculturally sensitive curriculum.128 Mexican Americans andother groups on strike sometimes created huelga schools, ortemporary schools for boycotting students. 29 However, despitethe similarities between Guadalupano and other groups' activ-ism, Guadalupanos never led a strike against Tempe ElementarySchool District. I'tom Escuela differed from most boycottschools in that it lasted for more than ten years, in contrastto the average two to three years that other boycott schools

'Stephen Kent Amerman, "Making an Indian Place in Urban Schools: NativeAmericans and Education in Phoenix, 1941-1984" (Ph.D. dissertation, ArizonaState University, 2002), 197-23 1,

""Summary: Title IV Indian Education Program, Tempe Elementary SchoolDistrict 0; Tempe Elementary School District School Board Minutes, October 4,1978 (4); "Yaqui Heritage," Tempe Daily News, May 14, 1977.

m'Dianne Rowland, "Via Head Start Program: Yaqui Culture Revitalized,"Mesa Tribune, August 12, 1976, Arizona Collection, Arizona State University;Meeks, Border Citizens, 234-35.1 Meeks, Border Citizens, 195-99; Whitaker, Race Work, 210-11.

"Guadalupe San Miguel, Jr., Brown, Not White: School Integration and theChicano Movement in Houston (College Station, TX, 2001), 93-103; Blanton,The Strange Career of Bilingual Education in Texas, 145.


remained active.3 0 Although it is uncertain why the Guadalu-panos did not strike, we can surmise that their power was notin their numbers, given that Guadalupe was only a small seg-ment of the school district. Additionally, if Guadalupanos hadboycotted the Frank School and/or protested against the TempeElementary School District, their actions likely would havebeen unsuccessful, because Guadalupe was isolated, the schoolwas still segregated, and many Tempe citizens probably wouldnot have noticed or cared.

Although Guadalupe's litigation ultimately led to signifi-cant educational reforms, some of the litigation met withonly mixed success. Both the 1972 case and the adult educa-tion case resulted in successful settlements, but Bernasconifought for six years in the courts and never received significantrestitution after winning her case. Another suit filed by theGuadalupe Organization in 1973, which demanded a perma-nent program of additive bilingual and bicultural education,did not succeed, because the Guadalupe Organization failed toprove that Tempe Elementary School District was not provid-ing an adequate compensatory bilingual program for minoritystudents. The Guadalupe Organization wanted more than justcompensatory bilingual education; they wanted continuingbilingual instruction even after language-minority studentslearned English, which went beyond precedent.'3' The courtused the case to clarify the role of public schooling in promot-ing national unity, stating, "Linguistic and cultural diversitywithin the nation-state, whatever may be its advantagesfrom time to time, can restrict the scope of the fundamentalcompact.""a2 It continued, "The decision of the appellees toprovide a predominantly monocultural and monolingual edu-cational system was a rational response to a quintessentially"legitimate state interest."3 3

This decision represented the nation's concept of citizenship,because it showed that the court believed the national languagewas English and the culture was "American," and it definedMexican American and Yaqui culture and language as perma-nently foreign and un-American. Both courts and school districts

1 3"Lynn Pyne, "I'Tom Escuela's 30 Pupils Learn Two Languages," The PhoenixGazette, April 23, 1980, SE-2,

m3Jonathan D. Haft, "Assuring Equal Education Opportunity for Language-Minority Students: Bilingual Education and the Equal Education OpportunityAct of 1974," Columbia Journal of Law and Social Problems 18:2 (Spring 1983):273, 275-76.3 Guadalupe v Tempe School District, No. 3 (1978), section C at par. 3.

"-Ibid., par. 5.

82 WESTERN UGAL HiSTORY VOL. 23, No. 1


often supported compensatory bilingual and bicultural educationbecause it was a temporary means of preparing students to enterthe regular classroom, where they would speak English and par-ticipate in American culture. Most courts and districts did notadvocate additive bilingual and bicultural education, becausedoing so would acknowledge the legitimacy of non-English lan-guages and non-Anglo cultures as equally American.

This case exemplifies the shift in Mexican American ac-tivism and reform in the 1960s and 1970s. The early- tomid-1970s marked a larger movement toward bilingual andbicultural education in the United States, coinciding with theChicano movement, a Mexican American civil rights movementin the 1960s and 1970s that stressed cultural pride, politicalactivism, and empowerment.134 Mexican Americans made adistinct shift away from claiming rights through assimilationand "becoming white" to asserting cultural pride and a newdefinition of citizenship that allowed for cultural and linguis-tic heterogeneity.3 Guadalupe (1972) represents a transitionbetween these claims: although the Guadalupe Organizationargued for cultural and linguistic recognition to eliminatestructural inequalities, it requested a pragmatic reform ratherthan the more radical demands of Guadalupe (1978) for an ad-ditive bilingual education program.

In the 1960s and 1970s, the combination of litigation andgrassroots activism was the most popular way of achievingcivil rights reform. For example, Chicanos in Houston effectedchange by boycotting schools, petitioning the school board, andusing the court system.3 6 The African American civil rightsmovement used the same tactics-activists simultaneouslypushed for precedent cases while organizing the community

' 4For more on the Chicano movement and education, see, for example, Meeks,Border Citizens, 180-210; Ernesto Chavez, "Mi Raza Primero!" (My PeopleFirst!): Nationalism, Identity, and Insurgency in the Chicano Movementin Los Angeles, 1966-1978 (Berkeley, CA, 2002); San Miguel, Jr., Brown,Not White; Carlos Muioz, Youth, Identity, Power: The Chicano Movement(New York, 2007); Darius V Echeverria, "Aztlin Arizona: Abuses, Aware-ness, Animosity, and Activism amid Mexican Americans, 1968-1978" (Ph.D.dissertation, Temple University, 2006); Maria Eva Valle, "MEChA and theTransformation of Chicano Student Activism: Generational Change, Conflict,and Continuity" (Ph.D. dissertation, University of California, San Diego, 1996)Maritza De La Trinidad, "Collective Outrage: Mexican American Activism andthe Quest for Educational Equality and Reform, 1950-1990" (Ph.D. disserta-tion, University of Arizona, 2008).

'Meeks, Border Citizens, 181; San Miguel, Jr., Brown, Not White.

1`6Ibid., 97-194.

at the local level. 7 As in Guadalupe, civil rights activiststhroughout the nation sought educational reforms throughinterrelated processes of grassroots activism and litigation.Commonly, legislation was created only after precedent cases,which civil rights activists learned from each other's successesand failures. Because of this, the Guadalupe Organization andother Arizona activist groups tended not to appeal to the statelegislature but gained legislative changes through litigation andlocal activism instead.13

This reluctance to utilize legislative reform has led to aninconsistency of language rights in the United States. JamesCrawford, president of the Institute for Language and EducationPolicy, asserts that language rights are "vulnerable to changingpolitical winds," largely because they are only vaguely pre-scribed in both legislation and court decisions and thus areopen to interpretation. 39 Despite the ambiguity, educationspecialist Michael Donal Sacken suggests that the best type ofeducation legislation is that which prescribes little and allowsfor local variance, because "the 'best' method of bilingualeducation will vary according to local conditions and availablepersonnel.... Why should Nogales's public schools providethe same minimal program imposed on Scottsdale? "140 Arguingthat bilingual and bicultural education often is attacked for its"explicitly pluralistic orientation," which "threatens the pro-cess of citizenship creation," he shows that even when statespassed legislation that explicitly allowed or mandated bilingualeducation, public opinion often forced the legislature to amendor repeal this legislation.'4 ' Perhaps the best solution to bilin-gual education and language rights disputes is to allow for localdecision-making, with some level of federal oversight, like theresults of Guadalupe (1972).

In spite of the inconsistencies in language rights, it is stillimportant that minority groups pursued change through demo-cratic means by working to redefine citizenship and the rights

'37Peter Lau, ed., From the Grassroots to the Supreme Court: Brown v. Boardof Education and American Democracy (Durham, NC, 2004), and Charles M.Payne, I've Got the Light of Freedom: The Organizing Tradition and the Mis-sissippi Freedom Struggle (Berkeley, CA, 2007).

'Michael Donal Sacken, Reformation of Arizona's Bilingual Education Policy:Litigation or Legislation? Mexican American Studies and Research CenterWorking Paper 4 (Tucson, AZ, 1983). See also Muioz, "Desert Dreams."

M9James Crawford, "Loose Ends in a Tattered Fabric: The Inconsistency ofLanguage Rights in the United States," in Language Rights in ComparativePerspective, ed. Joseph Eliot Magnet (Markham, Ontario, 2008), 2.'40Sacken, Reformation of Arizona's Bilingual Education Policy, 69, 72.

"Ilbid., 66, 83.


BILINGUAL EDUCATION ACTIVIsM

it entailed. In her exploration of cultural citizenship, historianBlanca Silvestrini demonstrates how "vernacular conceptionsof rights precede legal concepts of rights," meaning that minor-ity groups often recognized rights that had not yet been recog-nized by the dominant population or won through litigation orlegislation. Silvestrini shows that often, by fighting for theserights, activists alter the law and its interpretation.142 Eventhough the Guadalupanos met mixed results in their attemptsto reform the national and legal concept of citizenship, it wasstill worth the fight, because these cases helped mobilize thecommunity. The Guadalupanos' successes through the mu-tually dependent processes of grassroots activism and litiga-tion built political momentum in the community, while alsoteaching and modeling skills of citizenship, such as voting,litigating, and other activist techniques. This ultimately aidedGuadalupanos in solidifying their cultural identity and in de-manding their right to participate as citizens who are differentbut equal. By redefining citizenship to include cultural rights,minority ethnic groups, including the Guadalupanos, have pre-served and promoted pride in their language and culture.

'Flores and Benmayor, Latino Cultural Citizenship, 18.


BOOK REVIEWS

Voices Raised in Protest: Defending North American Citizens ofJapanese Ancestry, 1942-49, by Stephanie Bangarth. Vancouver,B.C.: UBC Press, 2008; 296 pp.; illustrations, notes, bibliography,index; $85.00 cloth; $32.95 paper.

In Voices Raise in Protest, author Stephanie Bangarth ex-plains in impressive detail how organizations and individualsstruggled to defend the rights of Americans and Canadians ofJapanese ancestry (Nikkei) during and immediately followingthe Second World War. Bangarth concludes that the wartimebattle to defend Nikkei rights was ineffective at first but laterhad a lasting, positive effect on mainstream thinking aboutcitizenship, human rights, and racism in both countries.

Bangarth draws several important conclusions that helpus understand why organized resistance to Nikkei "intern-ment" failed to prevent a large-scale violation of civil rights.She points out that liberals and intellectuals believed minori-ties should assimilate, and they thought that relocation wouldaccelerate Nikkei assimilation by dispersing this minoritypopulation throughout both countries. In a total war againstfascism, groups that supported Nikkei rights also supportedthe U.S. and Canadian war efforts. These factors made it verydifficult for organizations to contest the governments' claimsthat they were acting out of military necessity. As a result,instead of objecting to evacuation and relocation, most groupsopposed other wartime policies. In Canada, Nikkei and non-Nikkei organized jointly to fight involuntary deportation anddisenfranchisement. In the United States, Nikkei and non-Nikkei organized separately to oppose prolonged incarcerationand attacks on Nisei citizenship and voting rights.

Advocates for Nikkei rights were divided by internal dis-sent. The American Civil Liberties Union (ACLU), for example,fought against regional chapters and individual lawyers whowere adamantly in favor of opposing President Roosevelt onthe constitutionality of Executive Order 9066. The JapaneseAmerican Citizens League (JACL) drew the ire of JapaneseAmericans for cooperating with the overall program of intern-ment. Bangarth found that all groups in both countries shareda remarkable consensus, however, that they could not fightopenly for the rights of alien Japanese. Even though groups

88 WSENLGLHSOYVL 3 o

were splintered by internal dissent and bound by wartime loy-alty to the state, they shared a growing commitment to fightracism in ways that reflected new ideas about universal humanrights. The post-war language of universal human rights becameparticularly innovative in Canada.

Interestingly, Bangarth is silent about Japanese dual citizen-ship, and she is not alone. Few books published since the 1970sdiscuss the topic at all. The important role that citizenshipplays in this book and in the historical record begs the questionwhy this silence persists in the literature. It is a topic that is inserious need of updated research and discussion.

Although the scope and thorough research of this book areimpressive, the organization of the book is confusing andoften repetitive. Readers would benefit from having previousknowledge of the basic constitutional and legal histories ofboth countries. A previous knowledge of Nikkei history wouldalso be helpful but is not necessary. The author uses some legaljargon without defining the terms for readers unfamiliar withthe law.

These relatively minor problems do not diminish the factthat the book is an important contribution to the field and of-fers cutting-edge attention to the transnational nature of whatscholars typically treat as national topics. Bangarth providesthorough coverage of groups that worked to defend Nikkeirights, including many who are normally ignored. For example,few scholars include the efforts of Chinese, Jewish, AfricanAmerican, and non-West Coast Nisei together in their researchon Japanese Americans during the war. Some have examinedintellectual responses, or the conflicted activities of the ACLUand a handful of religious groups, particularly the AmericanFriends Service Committee, but Bangarth brings the discus-sion to a transnational level when, for example, she examinesthe international stake that Christian organizations had indemonstrating their commitment to the rights of all persons ofJapanese ancestry.

Voices Raised in Protest also provides a timely reflectionon the difficulty with which organizations opposed the stateduring wartime. Yet Bangarth reminds us in her final chapter ofthe lasting contributions made by the legal defense of minori-ties' rights after the war had ended. Despite the fact that theJapanese American Citizens League, for example, defended thegovernment's right to intern the entire West Coast popula-tion of Nikkei and collaborated to an embarrassing degree inthe process, the JACL fought racism vigorously after the war.It established a legal defense fund and supported some of themost important court cases that ended segregation and racistlaws after the war. Groups that organized to defend Nikkei in

88 WESTERN LEGAL HISTORY VOL. 23, No, I

Canada joined forces to prevent the involuntary deportation ofJapanese Canadian citizens after the war had ended. Despitethe limits of wartime dissent, continued efforts to end legallysanctioned racism succeeded over time.

Cherstin M. LyonCalifornia State University, San Bernardino

Federal judges Revealed, by William Domnarski. New York:Oxford University Press, 2009; 231 pp.; bibliography, index;$65.00 cloth.

There was a time when judges believed that whatever theydid away from public view deserved to stay secret. Prominentjurists destroyed their papers when they retired and left theirrulings as the only record of their service. But this resistanceto preserving a thorough historical record began to melt awaywhen judges came to realize that other colleagues were savingtheir papers, depositing them in libraries, and opening themfor research, and that some of their clerks were giving inter-views about the personal interactions within the inner sanc-tum. Additionally, in this era of transparency, federal judgeshave participated in oral history programs, in which theyhave recounted their entire lives from attending law school topracticing law to being appointed to the court. Thousands ofsuch interviews have taken place at every judicial level acrossthe country.

Aided by the biographical database maintained by theFederal Judicial Center, William Domnarski located and readmore than a hundred interviews, amounting to 20,000 pages oftranscripts. Domnarski, who holds both a J.D. and a Ph.D. inEnglish, focused on judges appointed between the 1960s andthe 1980s, who mirror a general statistical profile of the con-temporary federal judiciary.

The long reluctance of judges to lift the veil on their privateproceedings may have reflected concerns that focusing on thehuman qualities of judges would somehow reduce the auraof the bench. But by bringing out those human qualities, theoral histories in this volume enhance rather than diminish thebench. The jurists in Federal Judges Revealed admit to trip-ping on their robes, tipping over their chairs, fretting abouttheir slow reading skills, and anguishing over having their rul-ings reversed. They also assess their colleagues on the benchand the lawyers who appeared before them, and talk about thepressures of the job and the seriousness with which they taketheir responsibilities.

WINTER/SPRING 2010 BOOK REVIEWS 89

Domnarski's captivating sample of the information that oralhistory can provide justifies the efforts that have gone into col-lecting these reminiscences. He identifies all of the judges byname, the courts on which they served, and the dates of theirservice. Their stories cover their lives before admission to thebar, including college, military service, and law school; theirlegal careers before going on the bench, including clerkships,law practice, and the process of judicial nomination; and theirservice on the bench, including their initial transitions, thenature of their work, their clerks and fellow judges, and theirrendering of judicial opinions. The book does not deal withparticular cases but with how their life experiences and workhabits influenced the ways in which they decided cases. "It isnot a natural thing for federal judges to talk about themselvesto outsiders," Domnarski concedes. "After all, they answer tono one" (p. 5).

Because the oral histories were conducted by numerousinterviewers, Domnarski found that their quality variedsignificantly. The best occurred when the interviewers hadestablished a good rapport with the judges, putting them atease and encouraging them to speak candidly. Some of theseinterviews have yielded stunning admissions, particularlyabout the patronage demands sometimes placed on judicialnominees (one judge related how the senator who got himappointed made it clear that he in turn had to appoint a cer-tain clerk of the court and fill other jobs with people whomthe senator favored). The judges also discussed the high-stakes presidential deal-making behind their appointments,which left them sometimes little more than bystanders. Thejudges reflected on the difficult behavior and "petty tyran-nies" of some their colleagues on the bench (p. 7), and theoften stressful nature of the job, but they also talked abouttheir personal role models and the pleasure they gained fromobserving the "good lawyering" (p. 209) that took place intheir courtrooms.

Federal Judges Revealed succeeds in its aim to tell as muchabout the judges as about the process of judging. It is at onceabout individual lives and collective experiences, thanks toDomnarski's deft weaving of his selections. Beyond the infor-mation and analysis offered, the book may help convince someof the remaining skeptics on the bench of the importance ofleaving a more complete record of their tenure, including oralhistory interviews, to provide the needed historical context fortheir judicial legacies.

Donald A. RitchieU.S. Senate Historical Office

VOL. 23, No. I90 WESTERN LFGAL HISTORY

What Blood Won't Tell: A History of Race on Trial in America,by Ariela J. Gross. Cambridge: Harvard University Press, 2008;368 pp.; notes, acknowledgements, index; $29.95 cloth.

Ariela Gross's What Blood Won't Tell is a significant contri-bution to our understanding of the role law played in the socialhistorical construction of "whiteness" as a pseudo-paradigm ofrace. Gross is the John B. and Alice R. Sharp Professor of Lawand History at the University of Southern California and haspublished lengthy law journal articles that parallel the topic ofher book. To explain "whiteness" as a social historical con-struction via law, Gross examines case law and how court deci-sions created categories that defined "whiteness," dependingon time and place. This dependency is key to her thesis, whichis that the falsity of race can be verified in case law because thecases themselves reveal how subjective race is. This illogicalsubjectivity is seen as race became a moving target with con-tingencies based on individual litigant, plaintiff's claim, localunderstanding of race, oppositional class conflicts, and federallegislative imprint. The trials themselves turned on such am-bivalences as "appearance, ancestry, performance, reputation, as-sociation, science, national citizenship, [and] cultural practice."

Gross' book examines the period in which partus sequitur ven-trem, or the colonial statutory idea that status of children shouldfollow status of mother, prevailed. The colonial slaveholding classassumed that this legal idea, enforced by colonial courts, wouldaddress the obvious contradiction of a race-based slave society inwhich individuals of mixed ancestry existed. This existence wasdriven by the coercive intimacy of white men and black women.English common law was changed so that sexual coercion wouldnot produce offspring who would follow the status of their freewhite fathers. Gross does an excellent job in citing James HugoJohnson's old study of intimacy between white women and blackmen, which created numerous plaintiff claims that since theirmothers were free white women, partus sequitur ventrem shouldbe the holding principle in their freedom lawsuits.

Strangely, Gross refers to, but does not give a citationfor, the 1816 case of Negro John Davis v. Wood, which sheclaims ended the use of hearsay evidence to prove ancestry.The case that actually closed off this avenue of freedom formany mixed-ancestry plaintiffs was Mima Queen and Child v.Hepburn (1813). However, Gross is definitive in her analysisand understanding of the dialectics of racial boundaries inher examination of the 1857 Alexina v. Morrison case. Herexpertise is clear in the way she critically analyzes this caseand how "whiteness" contradictory categories of appearance,behavior, local custom, and knowledge of ancestry created a

WINTER/SPRING 2010 BOOK REVIEWS 91

racial contingency dilemma that freed Ms. Morrison from thecondition of slavery.

Gross should be given high marks for recognizing and un-derstanding two signal events in the legal/social constructionof race. In recognizing these two events-Nathaniel Bacon'sRebellion of 1767 and the Naturalization Act of 1790-Grossshares with the reader the importance of the symmetry be-tween race, class, and national citizenship. To explicate thissymmetry, she examines miscegenation cases: Melugeons asa mixed-race ancestral group and cases of national origin (Ar-menians became white by law, but Bhagart Singh Thind, anEast Indian, became non-white by law). The land of opportu-nity was predicated on racial identity of "whiteness" as con-nected to national citizenship. What is also impressive aboutthis work is that it is so well researched (e.g., included is latenineteenth-century African American fiction on the dilemmaof mixed-race individuals). Gross has mined the complete ex-tant scholarship on the topic of "whiteness," which enhancesthe scholarly quality of this book and makes Gross a doyennein this field of knowledge.

However, in spite of such impeccable scholarship, a lacunaexists when Gross analyzes "Mexican Americans and the'Caucasian Cloak."' This chapter follows earlier chapters inwhich she clearly understands the problematic of imperialismand the acquisition of land. Her excellent examination of Indianland allotment and white land aggrandizement, which involvesOklahoma's "Black Cherokees" and other such contested termsof race, continues in her analysis of land allotment in Hawai'ibetween ruling classes-Hawai'i royalty and the haoles (whites/imperialists). Gross' case law analysis of the Hawaiian HomesCommission Act of 1920; the Dawes Act and the racial prob-lematic of enrollment; and the eugenics parameters of immigra-tion policy are on mark. That is why the omission of the 1931Alvarez v Lemon Grove case is of interest. With her densescholarly citations, I assume she knows of this case but preferredto emphasize the Hernandez v. Texas and Mendez v. Westminis-ter cases, which were handed down later. How Mexicans becamewhite was initially based on the little-known 1931 Alvarez caseof school segregation by the Lemon Grove School Board in SanDiego County. This singular absence detracts only slightly fromthe quality and merit of the research. What Blood Won't Tell isa significant contribution to our understanding of law and raceas contingency expressions of imperial domination revealing"race" as a false category of human existence.

Malik Simba, Ph.D.California State University-Fresno

92 WESTERN LEGAL HiSTORY VOL. 23, No. I.

Dividing Western Waters: Mark Wilmer and Arizona v.California, by Jack L. August, Jr. Ft. Worth: TCU Press, 2007;172 pp.; illustrations, appendices, notes, bibliography, index;$32.95 cloth.

Dividing Western Waters celebrates the achievement ofArizona attorney Mark Wilmer's litigation of Arizona v California.Tried in the U.S. Supreme Court over a ten-year period (1952--63),Arizona v. California involved the legal efforts of both states tosecure enough Colorado River water to satisfy agricultural andurban demands stimulated by post-war growth.

The conflict had its genesis in several areas. In contrast tothe Colorado River's upper basin states (Colorado, Wyoming,Utah, and New Mexico), the three states of the lower basin(Arizona, California, and Nevada) were unable to agree inde-pendently to an apportionment of the 7.5 million acre-feet toeach basin designated by the 1922 Colorado River Compact.Because Arizona failed to ratify the compact until 1944, Cali-fornia planned and developed water projects on the basis ofprior appropriation and prescriptive rights to which Arizona,as a non-signer, could not object. Additionally, Californiaconcluded that Arizona's exclusive claim to the Gila River, aColorado River tributary, was unfounded and that any rightsArizona might have to the main-stem Colorado River wouldrequire consideration of the one million acre-feet annuallyflowing in the Gila.

Arizona saw things differently. Concerned by alarminggrowth data, declining water resources in underground aqui-fers, and significant surface subsidence, state officials saw theneed for certainty regarding the 2.8 million acre-feet of ColoradoRiver authorized to Arizona in the 1928 Boulder Canyon Proj-ect Act. While California continued to plan projects that couldutilize as much as 8.8 million acre-feet from the Colorado River(the Boulder Canyon Project Act awarded California 4.4 millionacre-feet), Arizona lived with the fear that Congress would nev-er approve construction of dams and a canal-eventually calledthe Central Arizona Project-because of California's fast-movingprojects. During the 1922 debates in Santa Fe, Arizona's Coloradocompact commissioner, W.S. Norviel, had fought for a deliverysystem from the Colorado River-the High Line Canal-to beincluded in the compact, but he failed, resulting in his state'srefusal to ratify that compact until 1944. Because of the attackson Arizona's rights to the Gila River, California's development ofprojects at warp speed, and no works in place for Arizona's shareof Colorado River water, Arizona resorted to litigation.

California had the population and financial resources tofight back both in the Supreme Court and in Congress. In con-

wlNTER/SPRING 2010 BOOx REVIEWS 93

94 WSrNLGLHSOYVt 3 o

trast, Arizona stumbled all over itself during the first five yearsof litigation. Finally, in 1957, state officials asked Mark Wilmerto take over the case. He began by filing a new petition in theCourt in which he argued that Arizona's rights to the Gila Riverhad been acquired prior to the Colorado River Compact and werenot in any way involved with the 2.8 million acre-feet awarded toArizona under the Boulder Canyon Project Act. Those rights, heargued, were perfected by Article 8 of the Colorado River Com-pact. "In one gesture," August notes, "Wilmer swept aside fourdecades of ill-advised argument. . ." (p. 81). In its 1963 decision,the Court agreed with Wilmer, granting Arizona its 2.8 millionacre-feet and limiting California to 4.4 million acre-feet. Althoughthis ruling has been difficult to enforce over the years, Wilmer'sleadership saved Arizona by making possible the Central ArizonaProject, approved in 1973 and substantially completed in 1993.

Jack August's biggest accomplishment in Dividing the Watersis his ability to cut through the thousands of pages of testimo-ny and documentation to show how Wilmer out-strategized hisCalifornia opponents with legal skill, charm, and persistence.Although the author's depiction of Wilmer's triumph mighthave been enhanced by a better connection to Norviel's repre-sentation of Arizona's needs during Colorado River Compactnegotiations in 1922, his skill in telling a very complex story in130 pages is most commendable. Equally meaningful is August'sdepiction of Wilmer as a gentleman, a community builder, and afamily man who was highly respected by his adversaries. In fact,one cannot read Dividing the Waters without being moved byWilmer's humanity during a full and productive life.

Daniel TylerColorado State University

94 WESTERN LEGAL HiSTORY VOL. 23. No. 1

ARTICLES OF RELATED INTEREST

Below we list articles recently published in journals of history,law, political science, and other fields that we believe may beof interest to readers. Although comprehensive, the list is notdefinitive, and the editor would appreciate being informed ofarticles not included here.

Acosta, Jestis Angel Enriquez. "Migration and Urbanization inNorthwest Mexico's Border Cities," Journal of the Southwest 51:4(Winter 2009).

Anderson, Jos6 Felip6. "Freedom of Association, the CommunistParty, and the Hollywood Ten: The Forgotten First Amend-ment Legacy of Charles Hamilton Houston," McGeorge LawReview 40:1 (2009).

Arendt, Emily J. "The Wyoming Experiment and the Case forPractical Propaganda," Annals of Wyoming 81 (Winter 2009).

Baade, Hans W "Chapters in the History of the Supreme Courtof Texas: Reconstruction and 'Redemption' (1866-1882)," St. Mary'sLaw Journal 40:1 (2008).

Baldrica, Michael, and Carrie Smith. "Research, Management,and Interpretation of Historic Sheep Camps and the East Sideof the Tahoe National Forest," Nevada Historical SocietyQuarterly 52 (Winter 2009).

Banks, Taunya Lovell. "Outsider Citizens: Film Narrativesabout the Internment of Japanese Americans," Suffolk UniversityLaw Review 42:4 (2009).

Belknap, Michal. "Why Dennis v. United States Is a LandmarkCase," Supreme Court History 34:3 (2009).

Bennett, Adam. "'The Up-Growth of New Industries': Transfor-mation of Nevada's Economy, 1918-1929," Nevada HistoricalSociety Quarterly 52 (Fall 2009).

96 WESTERN LEGAL HISTORY VL 3 o

Bishop, Ronald. "'Little More Than Minutes': How Two WyomingCommunity Newspapers Covered the Construction of theHeart Mountain Internment Camp," American Journalism 26(Summer 2009).

Bloomberg, Kristin Mapel. "'Striving for Equal Rights for All':Woman Suffrage in Nebraska, 1855-1882," Nebraska History 90(Summer 2009).

Blumm, Michael C., and Jane G. Steadman. "Indian TreatyFishing Rights and Habitat Protection: The Martinez DecisionSupplies a Resounding Judicial Reaffirmation," Natural Re-sources Journal 49:3 & 4 (Summer-Fall 2009).

Bonds, Anne. "Discipline and Devolution: Constructions ofPoverty, Race, and Criminality in Politics of Rural Prison De-velopment," Antipode 41 (May 2009).

Bubb, Daniel. "Transforming the Desert: Commercial Aviationas Agent of Change, Las Vegas, 1926-1945," Nevada HistoricalSociety Quarterly 52 (Fall 2009).

Buckingham, Susan, and Rakibe Kulcur. "Gendered Geographiesof Environmental Injustice," Antipode 41 (September 2009).

Camden, Jen, and Kathryn E. Fort. "'Channeling Thought': TheLegacy of Legal Fictions from 1823," American Indian LawReview 33:1 (2008-2009).

Correia, David. "Making Destiny Manifest: United StatesTerritorial Expansion and the Dispossession of Two MexicanProperty Claims in New Mexico, 1824-1899," fournal of His-torical Geography 35 (January 2009).

-. "Taking Timber, Earth, and Water: The Denver andRio Grande Railroad and the Struggle for New Mexico's LandGrants," Natural Resources Journal 48:4 (Fall 2008).

Damico, Denise Holladay. "The Cebolleta Land Grant: Multi-cultural Cooperation and Contention," Natural ResourcesJournal 48:4 (Fall 2008).

Davis, Ethan. "An Administrative Trail of Tears: Indian Re-moval," American Journal of Legal History 50 (January 2008).

96 VoL. 23. No. 1

DiMento, Joseph, and Kazuto Oshio. "Forgotten Paths toNEPA: A Historical Analysis of the Early Environmental Lawin the 1960s United States," Journal of American and CanadianStudies 27 (2009).

DiStefano, Diana L. "Disasters, Railway Workers, and the Lawin Avalanche Country, 1888-19 10," Environmental History 14(July 2009).

Duchemin, Michael. "Water, Power, and Tourism: Hoover Damand the Making of the New West," California History 86:4 (2009).

Fisher, Kristina G. et al. "Symposium on Land Grants andthe Law: The Disputed Legal Histories of New Mexico's LandGrants," Natural Resources Journal 48:4 (Fall 2008).

Fletcher, Mathew L.M. "Factbound and Splitless: The CertiorariProcess as Barrier to Justice for Indian Tribes," Arizona LawReview 51:4 (2009).

Floyd, Larry C. "Jake Hamon: 'The Man Who Made HardingPresident,"' Chronicles of Oklahoma 87:3 (Fall 2009).

Foley, William E. "Murder on the Santa Fe Trail: The UnitedStates v. See See Sah Mah and Escotah," Kansas History 32:2(Summer 2009).

Furnish, Dale Beck. "Sorting Out Civil Jurisdiction in IndianCountry after Plains Commerce Bank: State Courts and theJudicial Sovereignty of the Navajo Nation," American IndianLaw Review 33:2 (2008-2009).

Gallegoes, Brisa Violeta Carrasco. "Tijuana: Border, Migra-tion, and Gated Communities," Journal of the Southwest 51:4(Winter 2009).

Ginsburg, Ruth Bader. "Muller v. Oregon: One Hundred YearsLater," Willamette Law Review 45 (Spring 2009).

Green, Michael. "Abraham Lincoln, Nevada, and the Law ofUnintended Consequences," Nevada Historical Society Quar-terly 52 (Summer 2009).

Greenberg, Jonathan D. "The Arctic in World EnvironmentalHistory," Vanderbilt Journal of Transnational Law 42 (Octo-ber 2009).

WINTER/SPRING 2010 RELATED ARTICLES 97


Gregg, Mathew T. "Shortchanged: Uncovering the Value ofPre-removal Cherokee Property," Chronicles of Oklahoma 87(Fall 2009).

Grow, Matthew J. "The Suffering Saints: Thomas L. Kane,Democratic Reform, and the Mormon Question in AntebellumAmerica," Journal of the Early Republic 29:4 (Winter 2009).

Guenther, Todd. "'The List of Good Negroes': African Ameri-can Lynchings in the Equality State," Annals of Wyoming 81(Spring 2009).

Gugin, Linda C. "Sherman Minton: Restraint Against a Tide ofActivism," Vanderbilt Law Review 62:2 (2009).

Harris, Douglas C. "A Court Between: Aboriginal and TreatyRights in the British Columbia Court of Appeal," British Co-lumbia Studies 162 (Summer 2009).

Holley, Val. "Showdown at Geddes Gulch: How Prior Appropria-tion Ambushed Weber County," Utah Historical Quarterly 77(Fall 2009).

Houghton, Kristopher N. "The Blighted History of the AlamedaLand Grant: Montoya v. Unknown Heirs of Vigil," NaturalResources Journal 48:4 (Fall 2008).

Hudson, Blake. "The Public and Wildlife Trust Doctrines andthe Untold Story of the Lucas Remand," Columbia Journal ofEnvironmental Law 34:1 (2009).

Janssen, Volker. "When the 'Jungle' Met the Forest: PublicWork, Civil Defense, and Prison Camps in Postwar California,"Journal of American History 96 (December 2009).

Jarvis, Robert M. "John B. West: Founder of the West Pub-lishing Company," American Journal of Legal History 50(January 2008).

Jensen, Kimberly. "Revolutions in the Machinery: OregonWomen and Citizenship in Sesquicentennial Perspective,"Oregon Historical Quarterly 110:3 (Fall 2009).

Justl, Jonathan M. "Disastrously Misunderstood: Judicial Def-erence in the Japanese-American Cases," Yale Law Journal 119(November 2009).

Vot. 23, No. 198

Klein, James E. "Writ Large and Small: State and Local RaceRelations and the Meridan 'Race Riot' of 1926," Chronicles ofOklahoma 87:2 (Summer 2009).

Knake, Renee Newman. "Resolving Ethical Dilemmas inJames Welch's The Indian Lawyer," American Indian LawReview 33:1 (2008-2009).

Landau, Jack L. "The Search for the Meaning of Oregon'sSearch and Seizure Clause," Oregon Law Review 87:3 (2008).

Lerner, Mitchell. "'To Be Shot at by the Whites and Dodged bythe Negroes': Lyndon Johnson and the Texas NYA," Presiden-tial Studies Quarterly 39:2 (June 2009).

Light, Jennifer S. "The City as National Resource: New DealConservatism and the Quest for Urban Improvement," Journalof Urban History 35 (May 2009).

Linde, Hans A. "What Is a Constitution, What Is Not, and WhyDoes It Matter?" Oregon Law Review 87:3 (2008).

Lowitt, Richard. "Water and Power: Developing the GrandRiver Dam Authority, Part 1, 1935-1944," Chronicles ofOklahoma 87 (Summer 2009).

. "Power for the People: Developing the Grand River DamAuthority, Part 2, 1945-1964," Chronicles of Oklahoma 87(Fall 2009).

Lujan, Elaine Patricia. "The Pajarito Land Grant: A ContextualAnalysis of Its Confirmation by the U.S. Government," NaturalResources Journal 48:4 (Fall 2008).

Mahoney, Barbara. "Oregon Democracy: Asahel Bush, Slaveryand the Statehood Debate," Oregon Historical Quarterly 110:2(Summer 2009).

Mangun, Kimberley. "Editor A.D. Griffin: Envisioning a NewAge for Black Oregonians (1896-1907)," American Journalism 26(Summer 2009).

Manuel, Jeffrey T., and Andrew Urban. "'You Can't Legislatethe Heart': Minneapolis Mayor Charles Stenvig and the Politicsof Law and Order," American Studies 49 (Fall-Winter 2008).

WINTER/SPRINc. 2010 RELATED ARTICLES 99


Marder, Meredith K. "The Battle to Save the Verde: How Arizona'sWater Law Could Destroy One of Its Last Free-Flowing Rivers,"Arizona Law Review 51:1 (2009).

Martinez, Oscar J. "Border Conflict, Border Fences, and the'Tortilla Curtain' Incident of 1978-1979," Journal of the South-west 50 (Autumn 2008).

McCoy, Robert R. "The Paradox of Oregon's Progressive Poli-tics: The Political Career of Walter Marcus Pierce," OregonHistorical Quarterly 110:3 (Fall 2009).

McCoy, Ted. "The Unproductive Prisoner: Labor and Medicinein Canadian Penitentiaries, 1867-1900," Labor 6 (Winter 2009).

McLaughlin, Vance, and Paul H. Blackman. "'Why Take FourLives for One?': Ohio's Only Mass Legal Execution," Ohio Val-ley History 9 (Fall 2009).

McLear, Patrick. "Anslinger vs. Donnici: Narcotics Traffickingand Federal Justice in Kansas City, Missouri, 1939," MissouriHistorical Review 104 (October 2009).

McMahon, Stephanie Hunter. "To Save State Residents: States'Use of Community Property for Federal Tax Reduction, 1939-1947," Law & History Review 27 (Fall 2009).

Moehling, Carolyn, and Anne Morrison Pielh. "Immigration,Crime, and Incarceration in Early Twentieth-Century America,"Demography 46 (November 2009).

Mooney, Ralph James. "Remembering 1857," Oregon LawReview 87:3 (2008).

Mumme, Stephen P., and Oscar Ibbfiez. "U.S.-Mexico Envi-ronmental Treaty Impediments to Tactical Security Infra-structure along the International Boundary," Natural ResourcesJournal 49:3 & 4 (Summer-Fall 2009).

Noguchi, Kumiko. "Tribal Leadership and Native AmericanPolitical Rule through the Negotiations for Eighteen UnratifiedTreaties of 1852 in California," Hikaku Bunka Kenkyu 89 (2009).

Orbach, Barak Y. et al. "Themed Issue: Perspectives on theNew Regulatory Era," Arizona Law Review 51:3 (2009).

100 VOL, 23, No, 1

Paddison, Joshua. "Anti-Catholicism and Race in Post-Civil WarSan Francisco," Pacific Historical Review 78:4 (November 2009).

Parrett, Aaron. "'The Huge Mass Writhed and Screamed Like aLive Thing': Revisiting the Failure of Hauser Dam," The Maga-zine of Western History 59 (Winter 2009).

Platt, James Robert. "A Teacher Out of Work: Arizona Con-gressman John R. Murdock and the Negative Campaigning ofthe 1952 Election," Journal of the West 48 (Summer 2009).

Powell, Karen E. "A Historical Perspective on Montana Prop-erty Tax: 25 Years of Statewide Appraisal and Appeal Practice,"Montana Law Review 70 (Winter 2009).

Pue, W. Wesley. "Banned from Lawyering: William John GordonMartin, Communist," BC Studies 162 (Summer 2009).

Sarvis, Will. "Land and Home in the American Mind," Journalof Natural Resources & Environmental Law 22:2 (2008-2009).

Schiller, Mark. "The History and Adjudication of the AntonioChAvez Grant," Natural Resources Journal 48:4 (Fall 2008).

Schneider-Hector, Dietmar. "Aldo Leopold Wilderness: Ensur-ing a Legacy While Protecting 'A Ruggedly Beautiful Country,"'Journal of the Southwest 51:3 (Autumn 2009).

Schwaiger, Michael. "Salmon, Sage-Brush, and Safaris: Alaska'sTerritorial Judicial System and the Adventures of the FloatingCourt, 1901-1915," Alaska Law Review 26 (June 2009).

Shepard, Pete. "One Hundred Fifty Years of Electing Judges inOregon: Will There Be Fifty More?" Oregon Law Review 87:3 (2008).

Simpson, Michael W. "Enigma and Battleground: The Develop-ment of Oklahoma's Public Two-Year Colleges," Chronicles ofOklahoma 87:4 (Winter 2009-2010).

Speece, Darren. "From Corporatism to Citizen Oversight: TheLegal Fight over California Redwoods, 1970-1996," Environ-mental History 14 (October 2009).

Stauder, Jack. "Aldo Leopold and the Blue River: An IronicLegacy," Journal of the Southwest 51 (Autumn 2009).

WINTER/SPRINa 2010 RELATED ARTICLES 101


Stegmaier, Mark J. "'An Imaginary Negro in an ImpossiblePlace?' The Issue of New Mexico Statehood in the Seces-sion Crisis, 1860-1861," New Mexico Historical Review 84(Spring 2009).

Suarez-Potts, William J. "The Mexican Supreme Court and theJuntas de Conciliacion y Arbitraje, 1917-1924: The Judicialisa-tion of the Labour Relations after the Revolution," Journal ofLatin American Studies 41 (November 2009).

Threedy, Debora L. " United States v. Hatahley: A Legal Ar-chaeology Case Study in Law and Racial Conflict," AmericanIndian Law Review 34:1 (2009-2010).

Trask, Amy K. "A History of Revision: The ConstitutionalConvention Question in Hawai'i, 1950-2008," University ofHawai'i Law Review 31 (Winter 2008).

Twibell, T.S. "Rethinking Johnson v. M'intosh (1823): The Rootof the Continued Forced Displacement of American IndiansDespite Cobell v. Norton (2001)," Georgetown ImmigrationLaw Journal 23:1 (Fall 2008).

Wilson, Marcia J. "The Application of the Death Penalty inNew Mexico, July 1979 through December 2007: An EmpiricalAnalysis," New Mexico Law Review 38 (Spring 2008).

Zukowski, Suzanne M. "From Peasant to Proletarian: HomeOwnership in Milwaukee's Polonia," Polish American Studies 66(Autumn 2009).

102 VOL. 23, No. 1

MEMBERSHIPS, CONTRIBUTIONS,AND GRANTS

As OF JUNE 30, 2o11

FOUNDER$3,000 or more

Farella, Braun & Martel, San FranciscoMorrison & Forester Foundation, San FranciscoSusman Godfrey LLP, Los Angeles & Seattle

PATRON$1,000-$2,999Akin, Gump, Strauss, Hauer & Feld, Los AngelesHon. George T. Anagnost, PeoriaBingham McCutchen, Santa MonicaHon. James R. Browning, San FranciscoHon. Christine W.S. Byrd, Studio CityElizabeth J. Cabraser, Esq., San FranciscoPatrick J. Coughlin, Esq., San DiegoGareth T. Evans, Esq., Los AngelesFairbank & Vincent, Los AngelesJeffrey M. Fisher, Esq., San FranciscoDonald L. Gaffney, Esq., PhoenixGirardi & Keese, Los AngelesLeonard L. Gumport & Wendy Munger, South PasadenaHughes, Hubbard & Reed, Los AngelesKeker & Van Nest, San FranciscoKlee, Tuchin, Bogdanoff & Stern LLP, Los AngelesMunger, Tolles & Olson LLP, Los AngelesO'Melveny & Meyers LLP, Los AngelesRus, Miliband & Smith, IrvineMarc M. Seltzer, Esq., Los AngelesWilson, Sonsini, Goodrich & Rosati Foundation, Palo AltoDean Ziehl, Esq., Los Angeles

STEWARD$750-$999J. Bruce Alverson, Esq., Las VegasCrowley Fleck PLLP, BillingsHon. Procter Hug, Jr., RenoMarshal A. Oldman, Esq., EncinoHon. Christina Ann Snyder, Los Angeles

SPONSOR$500-$749Blecher & Collins, Los AngelesBoies, Schiller & Flexner LLP, Oakland

104 W

Jerome L Braun, Esq., San FranciscoJohn Carson, Esq., Los AngelesDaniel P. Collins, Esq., Los AngelesThomas A. Dubbs, Esq., New YorkWilliam I. Edlund, Esq., San FranciscoHon. Valerie Baker Fairbank, Los AngelesPaul T. Friedman, Esq., OaklandD. Wayne Gittinger, Esq., SeattlePatricia Glaser, Esq., Los AngelesGersham Goldstein, Esq., PortlandGreines, Martin, Stein & Richland, Los AngelesRita M, Haeusler, Esq., Los AngelesHanna, Brophy, MacLean, McAleer & Jensen LLP, OaklandHorvitz & Levy LLP, EncinoJennings, Haug & Cunningham LLP, PhoenixMark A. Kadzielski, Esq., Los AngelesLewis, Brisbois, Bisgaard & Smith, Los AngelesProf. Claire McKanna, San DiegoHon. M. Margaret McKeown, San DiegoGerald K. Smith, Esq., PhoenixSullivan & Cromwell LLP, Los AngelesTaylor & Company Law Offices LLP, San FranciscoDouglas R. Young, Esq., San FranciscoZiffren Brittenham, Branca et al., Los Angeles

GRANTOR$250-$499

Mitchell E. Abbott, Esq., Los AngelesAllison, Mackenzie, Pavlakis, Wright & Fagan, Carson CityEdward Angel, WashingtonSeth Aronson, Esq,, Los AngelesProf. Gordon Morris Bakken, Santa AnaLeroy J. Barker, Esq., PortlandBarran Liebman, PortlandHon. Carlos T. Bea, San FranciscoPeter J. Benvenutti, Esq., San FranciscoAndrew P. Bridges, Esq., San FranciscoTimothy F. Cahill, Esq., SacramentoHon. Earl H. Carroll, PhoenixJohn Francis Carroll, Esq., San PedroJose Mariano Castillo, Esq., Los AngelesHon. Richard R. Clifton, HonoluluDaniel P. Collins, Esq., PhoenixCynthia M. Cohen, Esq., Los AngelesEzekiel Cortez, Esq., San DiegoCosgrave Vergeer Kester LLP, PortlandCrowell Moring LLP, Los AngelesRobert H. Fairbank, Esq., Los AngelesHon. Ferdinand F. Fernandez, PasadenaBertram Fields, Esq., Los AngelesHon. Jay C. Gandhi, Los AngelesEric M. George, Esq., Los AngelesHon. Lloyd D. George, Las VegasHon. Alfred T. Goodwin, PasadenaHon. Ronald M. Gould, Seattle

104 Vot. 23 No. 1

WINTER/SPRING 2010 MEMBERSHIP 105

Philip L. Gregory, Esq., BurlingameRobert Henigson, Deer HarborHeurlin Sherlock Panahi, TucsonEarl M. Hill, Esq., RenoJohn C. Hueston, Esq., Los AngelesHon. Robert Johnston, Las VegasDaniel R. Kaleba, Esq., San JoseTerri D, Keville, Esq., Los AngelesKing & Kelleher LLP, San FranciscoEdward Vincent King, Esq., San FranciscoDaniel M. Kolkey, Esq., San FranciscoKolodny & Anteau, Beverly HillsRobert D. Lowry, Esq., EugeneGregory P. Lynch, Esq., BendTimothy Lynch, Esq., AnchorageRon Maroko, Esq., Los AngelesSteven R. Mather, Esq., Beverly HillsMrs. David McDaniel, San FranciscoThomas J. McDermott, Jr., Esq., Indian WellsMitchell, Silberberg & Knupp, Los AngelesHon. John F. Moulds, SacramentoHon. Geraldine Mund, Woodland HillsTerry Nafisi, Los AngelesStephen C. Neal, Esq., San FranciscoGeorge W. Nowell, Esq., San FranciscoHon. Ben O'Brien, CarmichaelCharles Pereya-Suarez, Esq., Los AngelesBruce M. Ramer, Esq., Beverly HillsHon. James A. Redden, BeavertonRemcho, Johansen & Purcell, San LeandroArthur F. Roeca, Esq., HonoluluHon. Paul G. Rosenblatt, PhoenixWilliam J. Rush, Esq., TacomaHon. Pamela Rymer, PasadenaKelli Sager, Esq., Los AngelesRobert M. Sanger, Santa BarbaraFrancis 0. Scarpulla, Esq., San FranciscoSegal & Kirby, SacramentoMary Jo Shartsis, SacramentoMichael H. Simon, Esq., SeattleHon. Milan D. Smith, Jr., El SegundoDean Steven R. Smith, San DiegoGregory P. Stone, Esq., Los AngelesJohn Sturgeon, Esq., Los AngelesHon. James Teilborg, PhoenixJohn D. Thorndal, Esq., Las VegasJeffrey . Tilden, Esq., SeattleHon. Robert J. Timlin, CarpinteriaGail M. Title, Esq., Los AngelesD. Burr Udall, Esq., TucsonRobert S. Warren, Esq., San MarinoMichael A. White, Esq., SaipanWilke, Fleury, Hoffelt, Gould & Birney, SacramentoJoan C. Wright, Esq., Carson CityMeryl L. Young, Esq., IrvineJohn M. Youngquist, Esq., San Francisco

WINwrsn/SPRING 2010 MEMBERSHIP 105


SUSTAINING$100-$249

Barry Abrams, Esq., HoustonAlex Aghajanian, Esq., PasadenaMark Asdourian, Esq., Newport BeachLaurel Beeler, Esq., San FranciscoTimothy Berg, Esq., PhoenixCharles Berwanger, Esq., San DiegoHon. Marsha Berzon, San FranciscoHon. Robert Boochever, PasadenaJohn Briscoe, Esq., San FranciscoSherry P. Broder, Esq., HonoluluHon. Robert Bryan, TacomaAlbie Burke, Ph.D., Long BeachKathleen Butterfield, Esq., San FranciscoDominic Campisi, Esq., San FranciscoHon. William Canby, PhoenixHon. David 0. Carter, Santa AnaMatthew Carvalho, Esq., SeattleWilson Condon, Esq., AnchorageJason Crotty, Esq., San FranciscoHon. Frank Damrell, SacramentoGary Dance, Esq., PocatelloRichard De Luce, Esq., Palos Verdes EstatesHon. Thomas B. Donovan, Los AngelesRoy Dwyer, Esq., BendProf. John Eastman, OrangeRobert Ebiner, Esq., West CovinaHon. Morrison England, Jr., SacramentoDonald Falk, Esq., Palo AltoHon. Robert Faris, HonoluluHon. Dale Fischer, Los AngelesDennis Fischer, Esq., Santa MonicaHon. Raymond Fisher, Sherman OaksRuth Fisher, Esq., Los AngelesHon. James Fitzgerald, AnchorageHon. Betty Fletcher, SeattleHon. William Fletcher, San FranciscoHon. Selim Franklin, Costa MesaJohn Fredenburg, Esq., SacramentoLawrence Friedman, StanfordHon. Helen Frye, New YorkHon. Dolly M. Gee, Los AngelesHon. Lloyd George, Las VegasBrian Getz, Esq., San FranciscoE. Johanna Gibbon, Esq., IrvineProf. Dale Goble, MoscowChristopher Goelz, Esq., Mercer IslandHon. Mitchel Goldberg, Yorba LindaMartha K. Gooding, Esq., IrvineThomas Greenan, Esq., SeattleHon. Arthur Greenwald, EncinoRichard A. Grossman, Esq., Los AngelesHon. Philip Gutierrez, Los AngelesMichael Haglund, Esq., PortlandStephen Halsey, Newport



E. Richard Hart, WinthropJohn Hasko, MoscowThomas Haven, Esq., AthertonArthur Hellman, PittsburghBrian Hennigan, Esq,, Los AngelesBruce Heurlin, Esq., TucsonHon. H. Russel Holland, AnchorageJames Homola, Esq., FresnoMichael Hubbard, Esq., WaitsburgPeter Hughes, Esq., San DiegoHon. Sandra Segal Ikuta, PasadenaHon. Susan Illston, San FranciscoShirley and George D. Jagels, Jr., San MarinoDaniel Jamison, Esq., FresnoHon. D. Lowell Jensen, Castro ValleyBernard Jolles, Esq., PortlandHon. Cindy Jorgenson, TucsonHon. Meredith Jury, RiversideHon. Lawrence Karlton, SacramentoSteven Kazan, Esq., OaklandPatrick Kelly, Esq., Los AngelesThomas Kidde, Esq., Los AngelesMichael King, Esq., SeattleHon. Sam King, HonoluluHon. Andrew Kleinfeld, FairbanksThomas Koegel, Esq., San FranciscoTheodore Kolb Esq., San FranciscoStephen Kolodny, Esq., Beverly HillsGordon Krischer, Esq., Los AngelesHon. Robert Kwan, Santa AnaHon. Peggy Leen, Las VegasHon. Ronald Leighton, TacomaHon. Ronald Lew, Los AngelesSamuel Lionel, Esq., Las VegasDavid Lira, Esq., Los AngelesHon. M. James Lorenz, San DiegoHon. Elwood Lui, Los AngelesHon. Eugene Lynch, RossHon. Jeremiah C. Lynch, MissoulaThomas Mackey, Ph.D., LouisvilleJ. Richard Manning, Esq., SeattleHon. Malcolm Marsh, PortlandRaymond C. Marshall, Esq., San FranciscoDaniel Mason, Esq., San FranciscoKirk McAllister, Esq., ModestoMrs. David McDaniel, San FranciscoTracy McGovern, Esq., MedfordHon. Howard McKibben, VerdiMary McNamara, Esq., San FranciscoKurt Melchior, Esq., San FranciscoFrederick Merkin, Esq., Los AngelesGrover Merritt, Esq., Alta LomaHeather Kendall Miller, Esq., AnchorageHon. Susan Mollway, HonoluluBernard Moore, Esq., MedfordHon. Kimberly Mueller, SacramentoHon. Alex Munson, Saipan



Smithmoore Myers, Esq., SpokaneHon. Dorothy Nelson, PasadenaDavid Nolan, Esq., OrindaHon. William Norris, Los AngelesRoyal Oakes, Esq., Los AngelesRichard Odgers, Esq., San FranciscoLeslie O'Leary, Esq., PortlandHon. John Peterson, ButteThomas Peterson, Esq., San FranciscoPaula Petrik, South RidingHon. Mariana Pfaelzer, Los AngelesHon. Virginia Phillips, RiversideJeffrey Portnoy, Esq., HonoluluJohn Poucher, Esq., Santa BarbaraHon. Albert Radcliffe, EugeneJohn Rawls, Esq., HoustonHon. Manuel Real, Los AngelesScott Reed, Esq., Coeur d' AleneMichelle Reinglass, Esq., Laguna HillsHon. Stephen Reinhardt, Los AngelesHon. Robin Riblet, Santa BarbaraKent Richards, Ph.D., EllensburgHon. James Robart, SeattleCara Robertson, Esq., Santa MonicaDavid Robinson, Esq., PasadenaJames Roethe, Esq., OrindaLawrence Rohlfing, Esq., Santa Fe SpringsRobert Rosenfeld, Esq., San FranciscoHon. Herbert Ross, AnchorageLowell Rothschild, Esq., TucsonMark D. Rubin, Esq., TucsonHon. Janis Sammartino, San DiegoRobert Sanger, Esq., Santa BarbaraMartin Schainbaum, Esq., San FranciscoHon. Mary Schroeder, PhoenixJeremiah Scott, Jr., Esq., EurekaHon. Edward Shea, RichlandTimothy Sheehan, Esq., AlbuquerqueHon. James K. Singleton, AnchorageHon. Otto Skopil, Jr., Lake OswegoHon. N. Randy Smith, PocatelloJames Spellman, Esq., Long BeachMichael Steponovich, Esq., OrangeDavid Steuer, Esq., Palo AltoHon. Alicemarie Stotler, Santa AnaLynn Stutz, Esq., CampbellHon. Lonny Suko, YakimaWilma Sur, Esq., HonoluluHon. A. Wallace Tashima, PasadenaJohn Taylor, Esq., PasadenaHon. Leslie Tchaikovsky, OaklandHon. Sidney Thomas, BillingsHon. Gordon Thompson, Jr., San DiegoRoderick Thompson, Esq., San FranciscoJohn Thorndal, Esq., Las VegasTerry Thurbon, Esq,, JuneauHon. Robert Timlin, Carpinteria

VOL. 23, No. 1108

WINTER/SPRING 2010

Gary Torre, Esq., OaklandPaul Ulrich, Esq., PhoenixRiley Walter, Esq., FresnoHon. Kim Wardlaw, PasadenaLeslie Weatherhead, Esq., SpokaneHon. John Weinberg, SeattleHon. Claudia Wilken & Hon. John M. True III, BerkeleyHon. Stephen Wilson, Los AngelesJoseph Woods, Jr., Esq., OaklandEdward Wynne, Jr., Esq., RossHon. Frank Zapata, TucsonHon. Thomas Zilly, Seattle

ADVOCATE$50-$99

Robert Aitken, Esq., Palos Verdes EstatesCheryl Alcorn, Temple CityHoney Amado, Esq., Beverly HillsJean-Claude Andre, Esq., Los AngelesSarah Andre, Los AngelesC. Murphy Archibald, Esq., CharlotteRonald Atwood, Esq., PortlandFrederick Baker, Esq., San FranciscoHon. Dennis Beck, FresnoDavid Bederman, AtlantaHon. William Beverly, Jr., Rolling Hills EstatesHon. Robert Block, Santa AnaErnest Bonyhadi, Esq., PortlandStanley Boone, Esq., FresnoMargaret Branick-Abilla, Esq., Palo AltoHon. Rudi Brewster, San DiegoHon. Melvin Brunetti, RenoDonald Burrill, Esq., South PasadenaMartha Byrnes, Esq., Los AngelesRobert Calo, Esq., PortlandHon. Peter Carroll, RiversideAnnetta Casey, Esq., BerkeleyCathy Catterson, San FranciscoHon. Maxine Chesney, San FranciscoDana Christensen, Esq., KalispellNanci Clarence, Esq., San FranciscoRichard Clements, Esq., Long BeachCharles Cleveland, Esq., SpokaneHon. Audrey Collins, Los AngelesJack Collins, Esq., PortlandTheodore Collins, Esq., SeattleJohn Colwell, Esq., BonitaAnne Crotty, Esq., PasadenaRonald Dean, Esq., Pacific PalisadesEileen Decker, Esq., Los AngelesJanmarie Dielschneider, Esq., McMinnvilleHon. David Duncan, PhoenixPaul Eaglin, Esq., FairbanksJames Ellis, Esq., SeattleHon. William Enright, San DiegoBruce Ericson, Esq., San Francisco

MEMBERSHIP 109


Thomas Faligatter, Esq., BakersfieldJames Finberg, Esq., San FranciscoHon. George Foley, Jr., Las VegasHon. Richard Ford, NipomoStanley Friedman, Esq., Los AngelesChristian Fritz, Ph.D., AlbuquerquePaul J. Georgeson, Esq., RenoMichael Gisser, Esq., Los AngelesHon. Marc Goldman, Santa AnaBarry Goode, Esq., RichmondJohn Gordan III, Esq., New YorkWilliam Gorenfeld, Esq., NovatoJeffrey Graubart, Esq., PasadenaPaul Gray, Esq., ClaremontEugene Gregor, Esq., New YorkMichael Griffith, OaklandDr. Vanessa Gunther, FullertonHon. Randolph Haines, PhoenixHon. Cynthia Hall, PasadenaJohn Hanft, Esq., San FranciscoRichard Harrington, Esq., San FranciscoHon. Terry Hatter, Jr., Los AngelesJohn Havelock, Esq., AnchorageHon. William Hayes, San DiegoAlan Hensher, Esq., MercedPreston Hiefield, Jr. Esq., RedmondErnest Hoidal, Esq., BoiseHon. Eileen Hollowell, TucsonHon. John Houston, San DiegoHon. Patrick Irvine, PhoenixHon. Anthony Ishii, FresnoL.M. Jacobs IV, Esq., TucsonHon. Edward Johnson, StagecoachDr. Lisa Johnson, HaywardGarry Kahn, Esq., PortlandHon. Harold Kahn, San FranciscoJacquelyn Kasper, TucsonHon. Victor Kenton, Los AngelesMatthew Kirby, Esq., Los AngelesHon. Christopher Klein, SacramentoHon. James Kleinherg, San JoseHon. Leslie Kobayashi, HonoluluMark Koop, Esq., BerkeleyHon. Marlene Kristovich, Los AngelesDonald Kunz, Esq., PhoenixJerrold Ladar, Esq., San FranciscoLouise LaMothe, Esq., Santa BarbaraJohn Lapinski, Esq., Los AngelesJames Lassart, Esq., San FranciscoBartholomew Lee, Esq., San FranciscoH. Clifford Looney, Esq., ValeJames Lund, Esq., Los AngelesJordan Luttrell, San FranciscoMichael Magliari, ChicoHon. James Mahan, Las VegasHon. Bruce Markell, Las VegasRobert Markman, Joplin

110 VOL, 23, No. 1

WINTERISPRING; 2010 MMESI 1

James Martin, Esq., Los AngelesJill Martin, HamdenHon. A. Howard Matz, Los AngelesJerry McNaul, Esq., SeattleHoward McPherson, Esq., HonoluluPhilip Merkel, Esq., Huntington BeachMark Andrew Merva, Esq., WashingtonHon. Jeffrey Miller, San DiegoThomas Mitchell, Esq., San FranciscoHon. Donald Molloy, MissoulaProf. R. James Mooney, EugeneAlexander Moore, Esq., Walnut CreekProf. Leopold Musiyan, PapeeteClaus-M. Naske, Ph.D., FairbanksHon. William Nielsen, SpokaneHon. Fernando Olguin, Los AngelesDavid Oppenheimer, San FranciscoChet Orloff, PortlandHon. Diarmuid O'Scannlain, PortlandHon. Carolyn Ostby, BillingsHon. Karen Overstreet, SeattleStephen Pahl, Esq., San JoseJohn Palache, Jr., Esq., GreenwichHon. Owen Panner, MedfordRobert Parham, AnchorageForrest Plant, Esq., SacramentoHon. Stephen Pogson, PhoenixJohn Porter, Esq., Los AngelesBertram Potter, Esq., PasadenaSara Purcell, Esq., Mill ValleyHon. Charles Pyle, TucsonHon. Justin Quackenbush, SpokaneJudith Ramseyer, Esq., SeattleHon. Karsten Rasmussen, EugeneAnn Miller Ravel, Esq., San JoseHon. Edward Reed, Jr., RenoMichael Reiss, Esq., SeattleKenneth Robbins, Esq., HonoluluPhilip Roberts, LaramieRalston Roberts, Esq., HillsboroughHon. Ernest Robles, Los AngelesHon. John Rossmeissl, YakimaJ. David Sackman, Esq., Los AngelesStefano Sarnicola, GlendaleEdmund Schaffer, Esq., Los AngelesEdwin Schander, PasadenaRobert Schwantes, BurlingameJack Schwartz, Esq., PortlandHon. William Schwarzer, San FranciscoHon. J. Michael Seabright, HonoluluHon. Richard Seeborg, San JoseHon. James Selna, Santa AnaMolly Selvin, Ph.D., Los AngelesPeter Sherwood, San FranciscoJ. Shotwell, Bay CenterHon. William Shubb, SacramentoJohn Cary Sims, Sacramento

WINTER SriuNG 2010 MEMBERSHIP ill

112 WESTERN LEGAL HISTORY VOL. 23. No. 1

Gail Smith, Esq., Mt. VernonNeil Smith, Esq., San FranciscoRayman Solomon, CamdenGraydon Staring, Esq., San FranciscoH. Dean Steward, Esq., San ClementeHon. Karen Strombom, TacomaSanford Svetcov, Esq., San FranciscoHon. Venetta Tassopulos, GlendaleJames Towery, Esq., San JoseHon. Howard Turrentine, San DiegoHon. Nandor Vadas, EurekaHon. Neil Wake, PhoenixGeorge Walker, Esq., MontereyHon. J. Clifford Wallace, San DiegoTimothy Weaver, Esq.,YakimaHarold Weiss, Jr., LeanderRobert Welden, Esq., SeattleHon. Thomas Whelan, San DiegoDennis E. Widdis, Esq., RenoRebecca Wiess, Esq., SeattleRobert Wolfe, Esq., Manhattan BeachJohn Wunder, Ph.D., J.D., LincolnHon. Bernard Zimmerman, San Francisco

SUBSCRIBING$25-$49

George W. Abele, Esq., Los AngelesAlabama Supreme Court, MontgomeryAlaska State Court Law Library, AnchorageAlbany Law School, AlbanyAmerican Antiquarian Society, WorcesterAmerican University, WashingtonClayton Anderson, Esq., La MesaAppalachian School of Law, GrundyArchives Library Information Center, College ParkArizona State Law Library, PhoenixArizona State University, TempeRonald Aronovsky, Esq., GlendaleAdam Attwood, SpokaneJudith Austin, BoiseAve Maria School of Law, NaplesGregory Baka, Esq., SaipanBrian Baker, Esq., PasadenaBancroft Library, BerkeleyBarry University, OrlandoBeverly Bastian, CarmichaelTerry Bird, Esq., Los AngelesJonathan Blavin, Esq., San FranciscoDean Bochner, Esq., Los AngelesBoston College, Newton CenterBoston Public Library, BostonBoston University, BostonGeorge Brewster, Jr., Esq., San DiegoHon. Charles Breyer, San FranciscoBrigham Young University, ProvoHon. Robert Broomfield, Phoenix

112 WESTERN LFGAL HISTORY Vor. 231 No. 1


Wayne Bruno, BrowningHon. Samuel Bufford, Los AngelesRobert Bulkley, Jr., Esq., BeavertonCarl Burnham, Jr., Esq., OntarioKenneth Burt, CarmichaelCalifornia Court of Appeals, SacramentoCalifornia History Center, DeAnza College, CupertinoCalifornia Judicial Center, San FranciscoCalifornia State Library, SacramentoCalifornia State University, FullertonCalifornia Western Law School, San DiegoCase Western Reserve University, ClevelandRobert Castro, Chino HillsCatholic University of America, WashingtonChapman University, OrangeChase College of Law Library, Highland HeightsHon. Edward Chen, San FranciscoChicago Kent College, ChicagoHillel Chodos, Esq., Los AngelesA. Marisa Chun, Esq., WashingtonJerry Clark, Great FallsCollege of William & Mary, WilliamsburgColorado Supreme Court, DenverColumbia University Law School, New YorkConstitutional Rights Foundation, Los AngelesJohn Cormode, Mountain ViewCornell University, IthacaCreighton University, OmahaDalhousie University, HalifaxDale Danneman, Esq., Paradise ValleyDorothy DeCoster, SeattleDr. Patrick Del Duca, Esq., Los AngelesDePaul University, ChicagoCharles Diegel, Nora SpringsM. Allyn Dingel, Jr., Esq., BoiseCharles Donegan, Esq., WashingtonDrake University, Des MoinesDuke University, DurhamDuquesne University, PittsburghNoel Dyer, Esq., San FranciscoE.P. Ipswich, IpswichElon University School of Law, GreensboroEmory University, AtlantaIris Engstrand, San DiegoW. Manning Evans, WashingtonFederal Judicial Center, WashingtonJohn Feeney, Esq., FlagstaffAlfred Ferris, Esq., San DiegoFlorida Coastal School of Law, JacksonvilleFlorida State University, TallahasseeFordham University, New YorkMerrill Francis, Esq., Los AngelesRichard Frank, Esq., San FranciscoHolly Fujie, Esq., Los AngelesGale Group, Serials Department, DetroitMichael J. Garcia, Esq., DowneyGeorge Washington University, Washington

WINTER/SPRING 2010 113MEMBERSHIP


Georgetown University Law Center, WashingtonGeorgia State University, AtlantaHon. Helen Gillmor, HonoluluCharlotte Goldberg, Los AngelesGolden Gate University, San FranciscoVivian T. Gomez, Rancho Santa MargaritaGonzaga University, SpokaneArielle Gorin, New HavenMary Grafflin, San FranciscoWilliam Grauer, Esq., San DiegoStephen Griffith, Esq., PortlandRobert Grimes, Esq., San DiegoHon. David Hagen, RenoRoger Haines, Jr., Esq., Del MarForrest Hainline III, Esq., San FranciscoHamline University, St. PaulMark Harrison, Esq., PhoenixHarvard Law School, CambridgeHastings College of Law, San FranciscoRobert Henry, Esq., SeattlePaul Hietter, GilbertHistorical Research Associates, MissoulaFred Hjelmeset, Mountain ViewHofstra University, HempsteadDouglas Houser, Esq., PortlandLembhard Howell, Esq., SeattleProf. James Huffman, PortlandShirley Hufstedler, Esq,, FlintridgeHon. Roger Hunt, Las VegasHuntington Library & Art Gallery, San MarinoIdaho State Historical Society, BoiseHon. Cynthia Imbrogno, SpokaneIndiana University, BloomingtonIndiana University School of Law, IndianapolisKristen Jackson, Esq., Los AngelesRobert A. James, Esq., San FranciscoBeverly J. Johnson, Esq., AlamedaKathleen Jolly, Esq., MonroviaJRP Historical Consulting Services, DavisJudiciary History Center, HonoluluElissa Kagan, Esq., Laguna WoodsDennis Karnopp, Esq., BendHon. Robert Kelleher, Los AngelesPaul Kens, AustinMerri Ketterer, LivingstonHon. Garr King, PortlandChris Kitchel, Esq., PortlandDr. Louis Knafla, PorthillWarren Kujawa, Esq., HendersonDouglas Kupel, Esq., PhoenixDavid Langum, BirminghamRonald Lansing, PortlandJames Larsen, SpokaneBeatrice Laws, San FranciscoPeter Levinson, BethesdaHenry Lewek, NovatoKenneth Leyton-Brown, Ph.D., Regina


Liberty University Law Library, LynchburgDouglas Littlefield, OaklandAllan Littman, Esq., TiburonTracy Livingston, HuntleyLong Beach City Attorney's Office, Long BeachHon. Robert Longstreth, El CajonLos Angeles County Law Library, Los AngelesLos Angeles Public Library, Los AngelesLouisiana State University, Paul M. Herbert Law Center, Raton RougeJames Loveder, Esq., Santa AnaHon. Charles Lovell, HelenaLoyola Law School, Los AngelesLoyola University, New OrleansWeyman Lundquist, Esq., HanoverJay Luther, Esq., San AnselmoMacQuarie University, SydneyBrian Malloy, San FranciscoRobert Maloney, Jr., Esq., PortlandCharles Markley, Esq., PortlandMarquette University, MilwaukeeJames Mason, StarbuckH.L. McCormick, Esq., Santa AnaJoe McCray, Esq., PortlandProf. Charles McCurdy, CharlottesvilleTrish McCurdy, NovatoMcGeorge School of Law, SacramentoHon. Robert McQuaid, Jr., RenoMercer University, MaconMichigan State University, East LansingMississippi College, JacksonMontana State Law Library, HelenaJeffrey Morris, DouglastonMultnomah Law Library, PortlandInga Nelson, PortlandDavid Nemer, Jr., Esq., San FranciscoNevada Historical Society, RenoNevada Supreme Court, Carson CityNew York Public Library, New YorkNew York University, New YorkJames Nielsen, Esq., San RafaelWillard Norberg, Esq., San FranciscoDiane North, BrookevilleNorth Carolina Central University, DurhamNorthern Illinois University, DeKalbNorthwestern School of Law, PortlandNorthwestern University School of Law, ChicagoDoyce Nunis, Jr., Ph.D., Los AngelesPeter O'Driscoll, South San FranciscoOhio Northern University, AdaOhio State University, ColumbusOklahoma City University, Oklahoma CityOrange County Public Law Library, Santa AnaRachel Osborn, Esq., SpokanePace University, White PlainsAnne Padgett, Esq., HendersonPennsylvania State University, CarlislePepperdine University, Malibu

115WINTER/SPRING 2010 MEMBERSHIP


Hon. Lawrence Piersol, Sioux FallsBarry Portman, Esq., San FranciscoPaul Potter, Esq., Sierra MadreGraham Price, Q.C., CalgaryPrinceton University, PrincetonHon. Philip Pro, Las VegasKarl Quackenbush, Esq., SeattleJames Reavis, MissoulaLeRoy Reaza, San GabrielProf. R.A. Reese, IrvineRegent University, Virginia BeachDavid Reichard, San FranciscoEvelyn Ricci, Santa BarbaraVirginia Ricketts, Twin FallsRiverside County Law Library, RiversideTerence W. Roberts, Borrego SpringsS. Roger Rombro, Esq., Manhattan BeachJohn Rosholt, Esq., Twin FallsRutgers Law Library, NewarkSamford University, BirminghamSan Diego County Law Library, San DiegoSan Francisco Law Library, San FranciscoSan Francisco Public Library, San FranciscoSan Jose Public Library, San JoseSanta Clara University, Santa ClaraEvelyn Schlatter, SalidaDavid A. Schlesinger, Esq., San DiegoOwen Schmidt, Esq., PortlandDavid Schoeggl, Esq., SeattleSeattle University Law Library, SeattleSeton Hall University, NewarkHon. Miriam Shearing, Incline VillageRupa Singh, Esq,, San DiegoAlan Smith, Esq., SeattleHon. Paul Snyder, Gig HarborSocial Law Library, BostonSouth Texas College of Law, HoustonSouthern Methodist University, DallasSouthern Methodist University School of Law, DallasSouthern New Hampshire University, ManchesterSouthwestern University, Los AngelesRussell Speidel, Esq., WenatcheeStanford University, StanfordState University of New York, BuffaloStetson University, St. PetersburgStevenson University, StevensonSt. John's University, JamaicaSt. Louis University, St. LouisSt. Mary's University, San AntonioHon. Roger Strand, PhoenixSt. Thomas University, Miami GardensMelanie Sturgeon, Ph.D., MesaMark Suagee, Esq., BensonSuperior Court Law Library, PhoenixSwets Information Services, RunnemedeSyracuse University, SyracuseNancy Taniguchi, Ph.D, Merced

116 WFSTERN LEGAL HiSTORY VOL. 23. No. 1


Temple University, PhiladelphiaTexas Tech University, LubbockTexas Wesleyan University, Ft. WorthHon. Mary Theiler, SeattleThomas Jefferson School of Law, San DiegoThomas M. Cooley Law Library, LansingThomas Tongue, Esq., PortlandSusan Torkelson, StaytonTouro Law School, Central IslipMichael Traynor, Esq., BerkeleyTulane University, New OrleansHon. Carolyn Turchin, Los AngelesChris Tweeten, Esq., HelenaU.S. Court of Appeals for the Eleventh Circuit, AtlantaU.S. Courts for the Eighth Circuit, Kansas CityU.S. Courts for the Seventh Circuit, ChicagoU.S. Courts for the Sixth Circuit, CincinnatiU.S. Department of Justice, WashingtonU.S. Supreme Court, WashingtonProf. Gerald Uelmen, Santa ClaraUniversidad de Malaga, MalagaUniversit6 Laval, QuebecUniversity of Alabama, TuscaloosaUniversity of Alberta, EdmontonUniversity of Arizona, TucsonUniversity of British Columbia, VancouverUniversity of California, BerkeleyUniversity of California, DavisUniversity of California, Los AngelesUniversity of California, Santa BarbaraUniversity of Chicago, ChicagoUniversity of Colorado, BoulderUniversity of Connecticut, HartfordUniversity of Denver, DenverUniversity of Detroit, DetroitUniversity of Florida, GainesvilleUniversity of Georgia, AthensUniversity of Hawaii, HonoluluUniversity of Idaho, MoscowUniversity of Illinois, ChampaignUniversity of Iowa, Iowa CityUniversity of Kansas, LawrenceUniversity of La Verne, OntarioUniversity of Louisville, LouisvilleUniversity of Maine, PortlandUniversity of Miami, Coral GablesUniversity of Michigan, Ann ArborUniversity of Minnesota, MinneapolisUniversity of Mississippi, UniversityUniversity of Missouri, ColumbiaUniversity of Missouri, Kansas CityUniversity of Montana, MissoulaUniversity of Nebraska, KearneyUniversity of Nebraska, LincolnUniversity of Nevada, Las VegasUniversity of Nevada, RenoUniversity of Nevada School of Law, Las Vegas

WrNTER/SPRING 2010 MEMBERSHIP 117

WESTERN LEGAL HisToRy

University of New Mexico, AlbuquerqueUniversity of New South Wales, SydneyUniversity of Notre Dame, Notre DameUniversity of Oklahoma, NormanUniversity of Oregon, EugeneUniversity of Pennsylvania, PhiladelphiaUniversity of Pittsburgh, PittsburghUniversity of San Diego, San DiegoUniversity of San Francisco, San FranciscoUniversity of South Carolina, ColumbiaUniversity of Southern California, Los AngelesUniversity of St. Thomas, MinneapolisUniversity of Texas, AustinUniversity of Tulsa, TulsaUniversity of Utah, Salt Lake CityUniversity of Utah Law School, Salt Lake CityUniversity of Virginia, CharlottesvilleUniversity of Washington School of Law, SeattleUniversity of Wisconsin, MadisonUniversity of Wyoming, LaramieValparaiso University, ValparaisoUniversity of Hawai'i Law School, HonoluluVanderbilt University, NashvilleVillanova University, VillanovaWake Forest University, Winston-SalemNicholas Wallwork, Esq., PhoenixStephen Wasby, EasthamWashburn University, TopekaWashington State Law Library, OlympiaWashington University, St. LouisRoy Weatherup, Esq., NorthridgeEdgar Weber, Esq., Daly CityDavid Weinstein, Esq., Los AngelesDeborah Weiss, Esq., TopangaWells Fargo Historical Services, San FranciscoWest Virginia University, MorgantownWestern New England College, SpringfieldWestern State University, FullertonWestern Wyoming College, Rock SpringsWhitman College, Walla WallaWhittier Law School, Costa MesaWidener University, HarrisburgWidener University, WilmingtonNorman Wiener, Esq., PortlandWillamette University, SalemWilliam Mitchell College of Law, St. PaulH.W. Wilson Company, BronxWisconsin Historical Society, MadisonW. Mark Wood, Esq., Los AngelesPaul Wormser, Mission ViejoYale Law Library, New HavenYeshiva University, New YorkYork University Law Library, North YorkRosalyn Zakheim, Esq., Culver CityLaurence Zakson, Esq., Los AngelesPayman Zargari, Esq., GlendaleI.S. Zil, M.D., J.D., Sacramento

118 VOL. 23, No. I


GRANTS, HONORARY, ANDMEMORIAL CONTRIBUTIONS

10 PERCENT FOR HISTORY CAMPAIGN

U.S. Court of Appeals, Ninth CircuitU.S. District Court, Central District of CaliforniaU.S. District Court, District of AlaskaU.S. District Court, District of ArizonaU.S. District Court, District of Hawai'iU.S. District Court, District of IdahoU.S. District Court, District of MontanaU.S. District Court, District of NevadaU.S. District Court, District of Northern Mariana IslandsU.S. District Court, Western District of Washington

NEVADA LEGAL ORAL HisTORY PROJECT

John Ben Snow Memorial TrustState Bar of NevadaU.S. District Court, District of NevadaWashoe County Courthouse Preservation Society

HONORARY AND MEMORIAL CONTRIBUTIONS

In honor of Judge James R. BrowningJudge Herbert A. Ross

In memory of Judge William L. DwyerJudge John L. Weinberg

In memory of Ian FanThomas S. Kidde, Esq.

In memory of Judge William H. OrrickBrian H. Getz, Esq.

In memory of Judge Mark ThomasLynn C. Stutz, Esq.

119WINTER/SwarIo 2010 ManMaRsms

WESTERN LEGAL HiSTORY

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