CONSTRUCTING THE CAUSE: THE ROLE OF THIRD-PARTY FUNDERS IN THE DEVELOPMENT OF MEXICAN AMERICAN INTEREST GROUP ADVOCACY by Devin Fernandes

A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Political Science JOHNS HOPKINS UNIVERSITY

© Devin Fernandes 2018 All rights reserved ABSTRACT

For the last 25 years, scholars have raised alarms over the disappearance of local civic membership organizations since the 1960s and a concomitant explosion of third-party-funded, staff-dominated, professional advocacy organizations. This change is said to contribute to long- term declines in civic and political participation, particularly among minorities and low income

Americans, and by extension, diminished electoral fortunes of the Democratic Party. Rather than mobilize mass publics and encourage their political participation, the new, largely progressive advocacy groups finance themselves independently through foundation grant money and do most of their work in Washington where they seek behind the scenes influence with unelected branches of government. However, in seeking to understand this transition “from membership to advocacy,” most current scholarship focuses on the socio-political factors that made it possible.

We have little understanding of the internal dynamics sustaining individual organizations themselves to account for why outside-funded groups are able to emerge and thrive or the ways in which dependence on external subsidies alters their operating incentives.

To address this hole in the literature, the dissertation engages in a theory-building effort through a case study analysis of the Mexican American Legal Defense and Educational Fund

(MALDEF), founded in 1968. Drawing on archival materials from MALDEF and its primary benefactor, the Ford Foundation, the dissertation opens the black box of internal decision-making to understand in real time how resource dependence on non-beneficiaries shaped the maintenance calculus of its leaders and in turn, group behavior. Traditional interest group scholarship focuses on fundraising as the sole maintenance challenge facing their leaders, one fulfilled by recruiting dues-paying members. The dissertation, however, shows how fundraising

ii from third-parties weakens their representational claim, creating a new maintenance challenge.

The grievances of ostensible constituents are all too capable generating controversies over an organization’s legitimacy. Thus, as a matter of survival, leaders are incentivized to limit their exposure to nominal constituents in order to avoid legitimacy challenges. In so doing, groups are drawn ever closer to norms and expectations of foundation patrons and both the professional and party networks in which they operate.

iii ACKNOWLEDGMENTS

This dissertation is the product of innumerable debts. As much as I would like to honor all of those whose support has nourished me over the years both leading up to and during the writing process, I know I will leave many out. Most immediately, I’d like to thank my adviser,

Steve Teles who made the excellent suggestion that I go scope out the Ford Foundations records on MALDEF which had just become available at the Rockefeller Archive Center. Steve and my other primary readers, Adam Sheingate and Emily Zackin, provided comments and helpful advice on the dissertation in its various draft forms throughout my time at Johns Hopkins. I also wish to thank my co-Americanist grad student colleagues, David Dagan and Lauren Foley (and their families!), for their intellectual and moral support which helped me make it through the often trying experiences of graduate school.

Of course, I would not even have made it to graduate school without the intervention of many individuals whose presence in my life I have been all too fortunate to have. I thank Peter

Skerry and Marth Bayles for giving me the encouragement to pursue an academic career and for their frequent counsel along the way. Finding my way to Peter’s employ as a research assistant after graduating college has been one of the greatest strokes of luck in my life. Likewise, I cannot even begin to fathom where I would be today without my best friend Chandler Bennett and his parents Katherine and Ed. Since kindergarten, they have nurtured my intellectual curiosity in more ways than I will ever be able to articulate whether they know it or not.

Lastly, I am grateful to have had the love and support of a family that has shown me nothing but encouragement throughout my life. My parents, Debbie and Dave, made innumerable sacrifices to support me and my development over the years. I remain in awe of my

iv mom’s toughness and her commitment to ensuring that my sister and I would achieve the education she wished for herself. In addition to my parents, I also enjoyed the enormous benefit of growing up not just with two sets of grandparents—itself a rarity among most of my peers— but two sets of great-grandparents as well. This was made all the more special given that all my grandparents lived nearby and were able to play significant roles in raising me. By the time I entered graduate school, I was fortunate enough to have two of my grandparents, Kay and Bud, still there to support me. Over the next several years, they would pester me with the same question: “When can we call you ‘Dr. Devin’?” Unfortunately, my grandmother was not able to realize their shared dream, passing away suddenly one month before my defense. I dedicate this dissertation to both of them and to her memory.

v TABLE OF CONTENTS

Preface 1

Chapter 1 Explaining the Subsidization of Progressive Advocacy 21

Chapter 2 Origins: Ford, the Rise of Cause Lawyering, & the Founding of MALDEF 43

Chapter 3 Mexican Americans Legal Activism 81

Chapter 4 The Founding & the First Two Years 113

Chapter 5 The 1970s 149

Chapter 6 Conclusions 194

Bibliography Archival Documents 203 Works Cited 212

vi PREFACE

In March of 1970, the San Antonio-based Mexican American Legal Defense and

Educational Fund (MALDEF) convened its annual board of directors meeting in Washington,

DC. The meeting had been sold as a mutual “getting-to-know-you” session for the staff and board members of the not quite two-year-old organization with various national policymakers.

The meetings had been arranged with the help of program officers at the Ford Foundation, the civil rights litigation firm’s primary benefactor, with the intent of raising its Washington profile while helping MALDEF leaders network with federal officials. Most board members were

Mexican American attorneys who lived in the Southwest and had little Washington experience.

More familiarity with the agencies and people MALDEF staff sought both to influence and collaborate with would provide the board members a better perspective to fulfill their governance responsibilities, Ford officers suggested. Thus, MALDEF staff helped arrange three days of presentations and meet-and-greet sessions for board members with officials at the Equal

Employment Opportunity Commission, the Department of Labor, Housing and Urban

Development, the Department of Justice, Health, Education and Welfare, among others

(“MALDEF Washington Conference Agenda, March 12-14, 1970” 1970).

The timing for such a meeting, however, proved awkward given the bombshell news

Ford officials planned to deliver to the board members. In the fall of 1967, Ford brass unhappy with the direction of MALDEF convened a three-person review panel which recently concluded.

The resulting recommendations amounted to nothing less than a full reorganization of MALDEF.

First, the review team proposed eliminating the position of executive director and vesting its responsibilities in the current “General Counsel” position. This suggestion amounted to no mere 1 organizational reshuffling, but rather a thinly disguised call to fire MALDEF’s current executive director and founder, Pete Tijerina.1 Second, the review panel called for pulling the organization’s headquarters out of San Antonio, suggesting that it be relocated to Washington,

DC “or some other important central city” and kept out of either of “the two main centers of [the]

Mexican-American population,” disqualifying Los Angeles as well. Third, they called for a rebalancing of the board. They noted that it was “comprised almost exclusively of Mexican-

American attorneys, mainly from Texas” and needed more geographic and occupational diversity. More astonishingly, they advised that it should be “reconstituted to include at least one-third non Mexican-American membership with attention being given to Anglo-membership”

(Campbell, Pincus, and Stewart 1970).2

Ford Foundation leaders adopted the set of recommendations and now program officer,

Christopher Edley, was set to announce them to attendees on the middle night of the three-day

Washington summit. On the night of March 13 as the meeting was called to order, board president Albert Armendariz announced a suspension in the order of business so that Edley could address a stunned audience. After delivering the recommendations, Edley requested to leave the meeting, but Armendariz insisted that he stay to give the incredulous attendees an opportunity to ask questions, though he remained less than candid in his answers. Two things floored members the most: the calls to relocate MALDEF’s headquarters and to fire Tijerina (who had excused himself from Edley’s presentation, having been briefed just beforehand). The implicit ultimatum embedded in Edley’s remarks—accept these terms or lose your funding—only exacerbated their

1 Although a lawyer himself, Tijerina had limited experience in federal litigation and his responsibilities as executive director were primarily operational. Responsibility for litigation work fell to the general counsel, who effectively served as the organization’s second-in-command. 2 The review team’s memo officially included five recommendations but the remaining two were procedural in nature. 2 outrage. Asked directly what would happen if the board rejected the recommendation, Edley refused to offer a firm answer but elliptically declared that “the Foundation has the power to cancel, reduce, suspend, or not to review” its grant, citing common law authority when pressed further on the legality of such a move (“MALDEF Board of Directors Meeting Minutes,

Washington, DC, March 13, 1970” 1970, 6).3 Not seeing any alternative means of keeping the organization afloat, board members acceded to the terms laid out by Edley, though not before fighting negotiating a compromise over the recommended east coast relocation. Arguing that any credible Mexican American organization had to be based in the Southwest, MALDEF officials succeeded in convincing Ford to approve San Francisco as the site of the new headquarters. San

Francisco would allow them to continue being a “Southwest” organization despite having few

Mexican Americans, internal documents noted, a fact that also had its advantages (Obledo

1970b, 1970c).

What’s the Matter with Texas?

One of the puzzling questions raised by this early showdown between MALDEF and its funders at the Ford Foundation is the expressed concern over MALDEF’s San Antonio headquarters. When MALDEF launched in the summer of 1968, it opened a headquarters there and a branch office in Los Angeles precisely because these were the two cities in the country with the largest Mexican American populations at the time. Nothing about these plans would seem controversial or even problematic. No one at the Ford Foundation expressed any objections

3 Asked directly if they could get a guarantee of ongoing funding if they followed through on the recommendations, Edley refused to answer. 3 at the time either. It was simply the obvious thing to do for an organization representing Mexican

Americans.

Yet within two years, the Ford review panel found its placement in San Antonio problematic, referring to it as “an historical accident.” Having the group’s operations located in the two major centers of the Mexican American population, the review team noted, was not

“designed to do the best job possible on a national basis” (Campbell, Pincus, and Stewart 1970).

MALDEF needed to place its main headquarters outside San Antonio or Los Angeles so it could avoid being drawn into “the vicissitudes of local politics.” For many of the attendees of the meeting that day in 1970, however, such a demand defied common logic. How could a Mexican

American organization function in the absence of any Mexican Americans? How would it have any legitimacy? Where would it get any public support? Would it lose its ability to speak for

Mexican Americans and represent their concerns? As Los Angeles board member Richard

Ibañez declared at the meeting:

If we are what we have been thus far in the battle field where the problems are and we leave our headquarters and get to Washington, we may lose the sensitivity to the problems. We would lose our effectiveness as foot soldiers that are fighting a war (10).

In fact, even the decision to host that fateful meeting in Washington proved controversial among several board members for taking place outside the Southwest. Tucson attorney Manuel

Garcia, upset at hearing the announcement of the meeting location, wrote a letter to Tijerina demanding a ballot-by-mail vote among the board members. Garcia’s objection failed on the ensuing vote but he had several sympathizers. In their view, holding their annual meeting outside the Southwest wasted an opportunity to drum up constituent support and worse, risked the

4 organization’s credibility. The board members would look like they were going on a “cocktail- circuit” junket and appear detached from the community’s concerns. As he wrote:

I believe board meetings should be held in the area of responsibility. We should have board meetings in everyone [sic] of the five states [of the Southwest]. The publicity of board meetings in the city, where we meet gives MALD[EF] publicity to the people it's supposed to help. It gives the board members the exposure to the problems of our area. I would suggest that the next meeting be held in the Ghost Ranch Lodge in Abiqui, New Mexico. Please make copies of this letter and have them mailed to each one of the board members (M. H. Garcia 1969).

Garcia’s concerns would prove unfounded. The organization could survive just fine at a distance from the Mexican American public. In fact, such distance proved vital to the organization’s eventual stability and growth. It is now among the two or three most prominent

Mexican American advocacy groups in the country and frequently called upon by media, politicians, and government agency officials to present Mexican American points of view (D.

Martinez 2009; Hero and Preuhs 2013). What Ford officials and a handful of other board members at the March 1970 meeting understood is that rather than helping MALDEF gain legitimacy and support from Mexican Americans to serve as their public voice, being in close proximity to large concentrations of Mexican Americans was more likely to undermine its legitimacy as a Mexican American spokesperson. Isolation from Mexican Americans was not a barrier to its ability to represent them, but essential for it to avoid being “harassed” by the public and local activist groups, or getting drawn into factional disputes. In order to stabilize its litigation functions and achieve new legal precedents—the original goal behind its founding and the reason for Ford’s financial support—MALDEF needed to be free from its nominal constituents and the distractions they represented.

5 The situation facing the group in San Antonio, the review panel noted, was not unlike that facing the founders of the United States when deciding where to place the country’s capital:

We also find that the location of the head office in the center of one of the two largest Mexican-American communities in the United States has embroiled it undesirably in the vicissitudes of local politics. Our experience here has given us some insight into several reasons for the establishment of a ‘new seat of government outside the original thirteen colonies’ when our very own country was created (Campbell, Pincus, and Stewart 1970).

San Antonio, and Texas generally, were drawing “a disproportionate investment of money and personnel” they explained, leading to a neglect of other Mexican American regions, not to mention internal jealousies from leaders in other states. But the other problem, hinted at in their reference to the “vicissitudes of local politics” was that MALDEF itself had become an unavoidable source of political controversy in San Antonio. In founding an organization to represent Mexican American interests, both Ford and MALDEF leaders elided the prior question of which Mexican Americans. Considering the multifaceted identities of Mexican Americans, there was no obvious answer to the question and the resulting ambiguity created significant challenges for MALDEF almost as soon as it opened its doors. MALDEF leaders quickly found themselves under pressure from various Mexican American political factions in both San

Antonio and Los Angeles who wanted to influence its agenda or take advantage of its resources.

This led to a constant cloud of criticism hanging over the organization. Recognizing that public attacks undermined the legitimacy of MALDEF’s representational claims, they had an obvious source of leverage with the group’s leaders and they used it often over the first two years of the group’s existence.

The controversies enveloping MALDEF also created headaches at Ford Foundation offices. First of all, MALDEF’s antagonists often drew Ford into their confrontations and sought

6 to undermine the foundation’s legitimacy. Because Ford represented the primary benefactor of the organization, it became an obvious pressure point from which to gain leverage during disputes. Critics could and did seek to shame Ford officials for their support of MALDEF, pointing to alleged malfeasance on the part of the organization to raise questions about the foundation’s charitable commitments.

But Ford officials were equally concerned by the ways in which outside pressures were pulling MALDEF away from fulfilling its original mission. The purpose of their funding was to support an organizational effort to secure broad new civil rights for Mexican Americans through the long, slow process of test-case litigation. The fact that pressures on MALDEF were distracting it from pursuing this goal put Ford in an awkward position with many of its allies in the White House, government agencies, and in cause-lawyering circles. It prevented MALDEF from conforming to the norms of “effective” civil rights advocacy, which reflected poorly on

Ford’s reputation as well. Ford officials would be accused of allowing MALDEF’s drift away from its original mission and from the norms guiding civil rights litigation efforts, opening them up to wider scrutiny over their grant-making practices and their commitment to the public interest.

MALDEF staff and board members implicitly understood the catch-22 in which they found themselves. They knew that their offices in San Antonio and Los Angeles invited constant criticism from members of the public and different wings of the local Mexican American political scenes. As an organization, they had been variously accused of not providing enough legal aid services, of being too conservative, or being too supportive of Chicano “militants” and struggled to respond. They could not simply ignore each attack—or potential attack—without opening themselves to questions of whether they were betraying “the community.” Yet they also

7 understood that the accommodations they made in response were impeding their aspirations to

“professionalize” and hone their practice. Thus, even while most in the room that evening in

March 1970 were aghast at being given an ultimatum, some members expressed support for a move to Washington. They would be “getting out of the line of fire,” attorney Hank Lopez told the room after Edley had gone. “MALDEF is going to be under pressure wherever you have

Chicanos.” Better to be out of sight, out of mind.

The Rise of the “Bodiless Heads”

The vignette above of MALDEF, I argue, is reflective of wider trends among progressive advocacy organizations that make up a sizable proportion of the modern Democratic Party.

Contemporary party scholarship tells us that since reforms passed after the chaotic 1968

Democratic National Convention, the two major American parties should be understood as loose, informal networks of interest groups, donors, and other activists (sometimes referred to collectively as “policy demanders”) who work with the party’s formal institutional leaders and elected officials (M. Cohen et al. 2008; Herrnson 2009). In particular, it is the actors in these networks who play sizable roles in the performance of basic party functions like candidate selection, electoral mobilization, and the development of governing agendas.

But not all party coalitions are equal. There has been a long-standing assumption in theories of American party competition that the Democratic and Republican parties engage in symmetrical conflict to win elections. Parties are understood as having a tendency either to converge to the median voter or to imitate each other’s party building innovations and campaign mobilization tactics (Downs 1957; Klinkner 1994; Galvin 2010). A more recent literature, however, argues that such theories are wrong and that the interest group coalitions at the core of

8 each party differ in important ways. Moreover, these differences have a significant impact on the ways in which parties engage in political conflict for power and influence (Grossmann and

Hopkins 2016; Hertel-Fernandez and Skocpol 2015; Teles 2008). One of the primary ways in which the parties differ, these authors argue, is that the progressive interest group coalition at the heart of the Democratic Party has much shallower roots in the electorate than the relatively more coherent and well-mobilized groups at the center of the Republican Party.

This divergence can be traced back to the 1960s when the country experienced a sudden boom in the formation of progressive advocacy organizations. These organizations, like

MALDEF, tended to be led by a professional class of lawyers and policy experts who leaned heavily on their knowledge of law and regulatory policy to effectuate social change. Seeking influence in the courtroom and the rules-writing process of a burgeoning administrative bureaucracy, they were able to achieve major policy victories. This emphasis on changing policy through expert advocates, however, has led many progressive organizations founded during this period and since to neglect electoral politics. Litigation is far easier than mobilizing vast publics to put pressure on elected officials, and as a result, they abandoned the latter as a tactic for creating social change.

As Shep Melnick (2005) has argued, these developments were facilitated by the changing nature of the political system in the 1960s which saw the terrain of administrative authority expand dramatically. Changing public expectations about the responsibility of government— especially the federal government—to address various economic and social ills as well as the immediate expansion of the federal bureaucracy as a result of the civil rights revolution and the

Great Society provided liberal reformers with more venues to pursue influence through the mobilization of expertise. They were aided along by the sudden emergence of third-party

9 support. Many of the agencies created in the Great Society worked with foundations to work with and fund new advocacy organizations so that progressive organizations did not need to mobilize dues-paying members for their support. By the 1970s, this changed the entire logic of political activism on the left from large-scale “tax and spend” policy agendas of New Deal era

Democrats to a kind of incremental reformism that relied on “mandate and sue” strategies.

The result has been a flowering of staff dominated advocacy efforts by progressive interest groups that claim to speak on behalf of disadvantaged publics or broad social issues but which remain largely invisible to their supposed beneficiaries. Scholars have often pointed to this trend away from membership based interest groups and toward Washington-based “advocacy” organizations as a reason for the declining civic and political engagement (Crenson and Ginsberg

2004; Putnam 2000; Skerry 2005; Skocpol 2002, 2003). Ironically, those most affected are often the same disadvantaged populations such organizations purport to represent (Schlozman, Verba, and Brady 2013).

Many political analysts have bemoaned the transformation of the progressive interest group landscape to top-down, professionally-driven organizational models and blame this development for the recent declining electoral fortunes of the Democratic Party. Writing as far back as 1997, Margaret Weir and Marshall Ganz pointed out that the focus on elite mobilization created a situation where “politics on the left had only weak ties linking national, state, and local politics, creating a political configuration of headless bodies and bodiless heads” (Weir and Ganz

1997, 160).

The handwringing following the 2014 and 2016 election cycles has given these arguments new relevance as progressives ponder the failure to turn out more voters, particularly

“Obama voters” who turned out in large numbers for the presidential contests in 2008 and 2012.

10 Of course, 2016 proved dispiriting for progressives not only because of the election of Donald

Trump and increased losses in the House and Senate, solidifying Republican control of the federal government, but because these losses were matched by major defeats at the state-level as well. Republicans also secured unified control over 24 state governments, compared to just 6 for the Democrats, while dominating 68 state legislative houses and 33 governorships in contrast to just 31 and 6 for the Democrats, respectively. Meanwhile, discussions have already turned to

2018 but these have been marked by pessimism that traditional Democratic constituencies, or constituencies they believe to be a natural fit for their agendas (i.e., the working class, minorities, and young people) are even worse at turning out in mid-term elections.

There have been perennial hopes among progressive activists that they might somehow imitate Republican efforts and build a stronger party infrastructure that can turn out voters (Bai

2007; Fisher 2006; Hertel-Fernandez and Skocpol 2015; Skocpol 2017). But rather than focus on these forward-looking efforts, the story I seek to tell in this dissertation is how the party and its progressive networks found themselves in this position in the first place. Particularly, I seek to explain the how the emergence of third-party funding in the late 1960s ushered in the era of professionalized advocacy for progressive politics, how resource dependency put pressure on advocacy group leaders to professionalize their organizations and created a problematic gulf between advocates and those on whose behalf they claim to speak.

To be sure, there have been many previous attempts to explore some of the institutional and contextual factors making this new advocacy model take off. Like Melnick, scholars have focused on changing public attitudes and the growth of an administrative bureaucracy offering more points of entry for activists to influence the federal government while diminishing the importance of mobilizing supporters. They have also pointed to advancements in technology

11 making travel and communication easier, allowing for the centralization of advocacy efforts in

Washington (Skocpol 2003, 2002). And most importantly, they have identified the sudden willingness of foundations to underwrite advocacy efforts, which has enabled would-be interest group entrepreneurs to appeal for lump sum support from sympathetic third parties rather than innovate intensive efforts to recruit dues-paying supporters (Berry 1977; Walker 1983).

But while these works have helpfully documented and identified the external conditions that made the new “bodiless head” model of advocacy possible, there have been few attempts to explain the emergence of individual organizations during this period. Neither have there been systematic attempts to explain how these groups have continued to persist. Whatever external forces may be at play, there is nothing automatic about the emergence of a specific organization or its behavior. What determines which interests in society get support from third-parties? Once formed, how do such groups continue to attract outside funding? And most importantly, how does their reliance on non-beneficiaries for support affect the way they identify and represent the concerns of their nominal constituents? How do organizational survival needs—the constant hunt for third-party support—influence the agendas, strategies, and tactics that such organizations adopt?

Undertaking questions like these would give a better understanding of the constraints a large proportion of liberal advocacy groups at the center of Democratic Party politics are operating and what might be done to reverse some of the negative consequences producing the declining electoral results described earlier. Lacking an organizational perspective, current research would be at a loss to explain why, for example, Ford Foundation officials initially decided to fund MALDEF, let alone force its relocation in 1970, or why MALDEF leaders ultimately decided to give their assent to this mandate. Why was it so necessary to relocate away

12 from the very people MALDEF sought to represent? What does this indicate about the options available to Democrats wanting to address the grassroots deficit of their interest group infrastructure?

In focusing on external causes behind the emergence of third-party funded interest groups, scholarship overlooks just how improbable a model of advocacy it is, begging for an explanation of how such organizations make it work. In the course of working on this dissertation, I would often try to describe my project as explaining the behavior of non- membership advocacy organizations dependent on outside funders. This typically produced an incredulous response: “What? How is that possible?” Before I could respond, the other person usually came up with an answer of their own: “Oh, you must be looking into the Koch brothers!”

Though such organizations are de rigueur on the political left, without context, my interlocutors were immediately outraged, concluding that such financial arrangements could only be the product of dark political forces. Usually, after explaining that I was, in fact, studying progressive organizations working on issues like civil rights or women’s rights, their sense of offense subsided. But on at least one occasion, the astonishment did not go away: “How do any of these groups have the right to speak on my behalf?” Indeed. But as I will argue, this lack of visibility or access is less an accident than it is necessitated by their funding model. As the MALDEF example helps illustrate, these things are threats to organizational survival.

MALDEF as Microcosm

To better understand the pathologies driving a large swath of the groups at the center of

Democratic Party politics, this dissertation engages in a close case study of MALDEF and the

Ford Foundation. Relying on materials from the archives of both entities, the dissertation opens

13 the black box of organizational decision-making to understand two ends of an exchange dynamic between foundation officials and interest group entrepreneurs. First, I demonstrate how foundations determine which interests to support and what they expect in return for their continued patronage. Second, I explain the challenges groups face in accepting money from foundation sources, i.e., how they resolve the tensions between satisfying funders and satisfying nominal constituencies, and the ways in which that resolution impacts their advocacy work.

The evolution of Mexican American political engagement and their interest groups epitomize the trends described above. Prior to the rise of professional, externally funded interest groups, Mexican Americans had little national prominence. The largest organizations by 1960, the League of United Latin American Citizens (LULAC) and the American GI Forum, were federated associations that largely engaged an upwardly mobile middle class population with integrationist aspirations. Chapters performed largely social functions for local Mexican

American populations and to the extent that they focused on politics, they had a parochial perspective that remained almost exclusively oriented to the local and state level (Kaplowitz

2005). The 1960 presidential election brought significantly more national notoriety as LULAC and GI Forum members in Texas created an enthusiastic ¡Viva Kennedy! campaign to support the Democratic nominee. When Kennedy clinched the state, their efforts were credited with making the difference (I. M. García 2000). Yet, the achievement had a short half-life. As political scientist Louis DeSipio has lamented:

In the forty years since [the Viva Kennedy campaign], and despite a vast growth in the Latino population, this accomplishment has not been repeated. On the contrary, and despite a vast expansion in the number of Latinos voting, Latino votes are frequently irrelevant to electoral outcomes. Of perhaps greater concern, it has been rare to see grassroots community organization in Latino communities that compared to what the Viva Kennedy! clubs established in 1960 (DeSipio 2004, 446).

14 It has become a regular trope among Mexican American activists to warn politicians that they will awaken “the sleeping giant” if they continue to push punitive immigration policies or fail to enact a broad legalization. However, such threats have not materialized since they began invoking the metaphor over fifty years ago. They continue to show lower rates of naturalization than other immigrants, lower rates of voter registration, and lower turnout rates as well. Evidence also suggests that native-born Mexican Americans experience lower levels of political participation than the foreign-born (J. A. Garcia 2010; Vigdor 2008).

A 1963 cartoon from the Political Association of Spanish-Speaking Organizations (Krochmal 2016, 301)

Since the 1960s, membership organizations that were active in mobilizing voters, and which provided critical support for the ¡Viva Kennedy! campaign, have experienced declining influence while third-party supported groups like MALDEF and the National Council of La Raza

(also established through a Ford Foundation grant in the 1960s) have taken their place.

Consistent with groups founded in that era, they have only marginal relationships with their constituents and have largely failed to mobilize the Mexican American public to participate in

15 the political process the way that LULAC, the GI Forum, or famous labor union movements had done. The major advocacy organizations serving Mexican Americans today have by default become organizations dependent on outside donors which invest more time in cultivating charitable contributions than grassroots supporters. The day-to-day concerns at these organizations are informed by calculations of what funders are willing to support–engaging constituents would only compromise their ability to attend to donor concerns.

Of course, in relying on MALDEF and its relationship with the Ford Foundation as a case study for making more generalizable claims about foundation-funded advocacy, the dissertation runs the inherent risk of selection bias. Yet, detailed case study analysis is the only way to get inside the black box of internal decision-making to understand the mechanisms driving organizational behavior, making such risks a necessary trade-off. Moreover, there are important counterbalancing reasons for believing that MALDEF provides a unique opportunity to gain insights that would be less visible in a wider analysis of third-party funded organizations.

Because of Ford’s early role in the transition “from membership to advocacy” and the fact that

MALDEF represented one of its first forays into funding brand new advocacy organizations, studying the organization provides the opportunity to explore subsidized advocacy as an emergent phenomenon. Neither Ford officials nor MALDEF’s leaders had the wisdom of experience in founding advocacy organizations from scratch. Likewise, there were no similar organizational models they could attempt to copy. To be sure, there were other litigation firms like the American Civil Liberties Union (ACLU) or the National Association for the

Advancement of Colored People Legal Defense and Educational Fund (NAACP LDF), but these were not created in whole cloth from a foundation grant. Rather, they were outgrowths of membership organizations as critics of the original MALDEF proposal were quick to note

16 (Galarza 1967). In other words, they had to improvise their way through the early years of the organization in ways that later groups would not. Because of this, they made decisions and took actions that tested the limits of what subsidized advocacy organizations could do. They were more likely to encounter resistance that future groups and their funders would later be able to anticipate and avoid, having learned lessons from the experiences of MALDEF and other pioneering groups. Pursuing other organizations for the kind of deep analysis presented here or pursuing a large-N study would therefore likely prove less revealing.

My analysis ultimately leads me to be deeply critical of MALDEF for its lack of grassroots accountability and, more generally, of third-party-funded advocacy which demands public distancing as a matter of organizational survival. As I show, MALDEF’s dependence on external support has led it to conform more to the views and procedural imperatives of elite professionals, party politicians, and government officials, as well as the priorities of a highly vocal minority of political activist types. To reach out and mobilize the average politically disengaged Mexican American would only disrupt the already complicated balancing act the organization must engage in to satisfy these various sets of actors. For Democratic Party networks, which are composed of organizations similarly reliant on outside money, this raises serious concerns. The party overall faces bleak electoral prospects going forward without a significant internal effort to grapple with the accumulated effects of its top-heavy interest group networks.

However, to be clear, I have few credible alternatives to suggest here. While the dissertation does express concerns from a democratic theory perspective that the voices of average citizens have been ignored at MALDEF, I recognize that even membership organizations suffer this problem. Robert Michels (2009) famously pointed out the tendency of

17 such groups falling prey to oligarchical leadership over one hundred years ago. Recent works, notably Strolovitch (2007), have reinforced the basic thrust of his arguments by pointing out the upper-middle class bias of women’s organizations because of participation imbalances inherent to membership groups. Likewise, it might be easy to idealize the role of early progenitors of

MALDEF like LULAC which, as a membership organization, was able to mobilize so successfully behind the Kennedy campaign. Yet it is also true that LULAC tended to emphasize the concerns of its middle class members and was dominated throughout much of the 1950s by a conservative faction that had little interest in issues of poverty and inequality.4 Adopting membership structures is hardly a panacea for creating more democratically accountable organizations even leaving aside perhaps the larger challenge of figuring out how a more inclusive organization might fund itself.

Of course, my critique also has to wrestle with the complicated drawbacks of making organizations more publicly accountable. While I am critical of the way third-party funded groups like MALDEF insulate themselves from their constituents, there are good reasons for doing so. There is no reason to be inherently distrustful of MALDEF lawyers or expert staff at other organizations. They bring to the table a professional knowledge that often gives them greater strategic and tactical insights into advocacy than constituents might have. MALDEF often found itself pressured by activists and members of the public to pursue litigation that was unlikely to result in an immediate legal victory, let alone yield a meaningful legal precedent. In these instances, MALDEF officials could call on the fact that they had a deeper understanding of

4 For more, see Kreneck (2001) and his biography of Felix Tijerina, president of LULAC for much of the 1950s. 18 case law or the probabilities of courtroom success, but such arguments were not always as convincing as they should have been.

Thus, while the dissertation unpacks important pathologies built into the ascendant model of progressive advocacy since the 1960s, readers may rightfully wonder what an alternative organizational model should be. Since I see most potential alternatives generating complicated trade-offs, I unfortunately do not have a satisfactory answer here but hope that the ensuing discussion generates debates that might yield more effective alternatives.

Plan of the Dissertation

The dissertation will proceed as follows. In the next chapter, I address the lack of an organization-level theory that can account for the formation and survival of externally-subsidized interest groups and put forward my own argument about the formation of such groups and the complications outside funding poses to their organizational maintenance. I then delve into the case study to illustrate my arguments. Chapter Two covers the history leading up to the decision by Ford Foundation officials to fund a Mexican American civil rights litigation firm and the motivations that animated their gift. Chapter Three then picks up the history of Mexican

American civil rights activism and litigation in the years leading up to the decision by a group of

San Antonio lawyers to ask the Ford Foundation to support their effort to start a Mexican

American civil rights litigation firm. After describing the negotiations between these interest group entrepreneurs and Ford Foundation officials to begin Chapter Four, I then turn to describe the organization’s first two years and the events that preceded the March 1970 meeting in

Washington, DC. In Chapter Five, I discuss how MALDEF officials attempted to right the ship

19 in the 1970s, overcoming the public controversies that marked the first two years to settle on a relatively stable agenda and funding arrangement. I offer conclusions in the final chapter.

20 CHAPTER 1 EXPLANING THE SUBSIDIZATION OF PROGRESSIVE ADVOCACY

And if a rational person will not join with others to act collectively, on what grounds do organizations claim to represent the interests of a certain segment of the population, and thus for what reason, if any, would public officials defer to such organizations? -James Q. Wilson (1995, 9)

The 1960s Advocacy Explosion

In the accepted timeline of the American interest group literature, the 1960s constitute a transformational moment. For much of the first half of the century, business interests dominated the landscape, accompanied primarily by trade associations and professional organizations. As the economy accelerated after World War II, however, the universe of organized interests started to expand and “citizen groups” came onto the scene in increasing numbers—an “explosion”

(Berry 1984). Groups organized around narrow material interests continued to enjoy an advantage, but they suddenly had sizable competition from groups dedicated to broad public interests like the environment and international peace or to defend the civil rights of African

Americans and other mass constituencies.

Sydney Tarrow has noted the irony of this development because at the very moment these organizations were bursting onto the scene, the major theoretical contribution to the interest group literature was a book about why they were unlikely to form (Tarrow 2011, 24). By this, he was referring to Mancur Olson’s famous book, The Logic of Collective Action, published in

(1965). Applying the logic of rationality from economic modeling, Olson argued that issues or interests with large potential constituencies were unlikely to have organized representation in the

21 political system. Olson recognized that funding and participating in the formation of an interest group requires time, resources, and effort, and most “rational” actors would prefer to avoid making these contributions and allow other people to take responsibility. Such avoidance came easier when the potential constituency of a group is large and when non-cooperators would benefit from the advocacy good produced regardless of their participation. This impulse to “free- ride” meant that groups defending the environment or civil rights would have a nearly impossible time forming unless there was some way to provide some exclusive benefit to those who participated over and above whatever the group achieved through its advocacy.

Olson’s work has undergone multiple refinements since, but it still somewhat controversially remains the dominant basic framework for understanding the internal logics of group formation (Jenkins 2006; Andrews and Edwards 2004). Some, like Tarrow, point to the

1960s wave of social movements and the explosion of citizen groups as contradicting its assumptions of selfishness on the part of rational actors. Yet its focus on incentives helps explain the inherent difficulties faced by interest group entrepreneurs and community organizers struggling to build organizations and bring people together to collectively advocate their shared interests. The bigger problem with Olsonian collective action theories is that they offer an incomplete account of interest group formation and survival.

Beginning in the early 1970s, academics began taking note of the fact that many of the new citizen groups forming since the boom period of the previous decade were not in fact being formed or sustained by organized memberships. Analyses by scholars like McCarthy and Zald

(1973), Berry (1977), and Walker (1983) were demonstrating that in fact, many of the new professionalized advocacy groups populating Washington DC were being supported by third- party funders like foundations and government agencies. In Berry’s 1970 survey of Washington

22 DC-based public interest groups, nearly 30 percent had neither individual nor organizational members and received their support from external sources. In a survey conducted just seven years later, Walker found that 89 percent of “citizen groups” (his term) in Washington received contributions from outside sources with one third reporting that they received no income from members. In other words, it wasn’t that groups formed during the advocacy boom had found the collective action challenge more easily surmounted than Olson predicted. Rather, their leaders found a workaround: third-party funders.

In identifying the limits of collective action theory to account for a large swath of the DC interest group landscape, Walker called for new theories to incorporate patron-dependent organizations. How do interests draw support for organized representation from notionally disinterested foundations? What accounts for an individual group to get off the ground and its ongoing survival? How had outside funding shaped the character of the interest group landscape?

Unfortunately, there have been few efforts to take up Walker’s call. Most accounts focusing on the internal dynamics of interest group formation and survival continue to focus their attention on the challenge of attracting and retaining member support, not of third parties.

Instead, third-party funded organizations are often characterized as exceptional cases and excluded from theory building efforts (see Young 2010). In the meantime, the broader field appears to be moving away from organization-level perspectives altogether. Most recent scholarship, often under the banner of neopluralism, focuses on interest groups from a macro- level perspective. Emphasizing “issue spaces” and “organizational ecologies” this literature suggests that the types of groups that form and their behavior is determined entirely by the market demand. Somewhat tautologically, a particular type of advocacy organization forms because there was space and demand for it within the larger ecology of groups working on a

23 given issue (e.g., Bosso 2005; Browne 1990; Lowery and Gray 2004; Lowery, Halpin, and Gray

2015; McFarland 2004).

In the rest of this chapter, I lay out a theory of interest groups that brings attention back to an Olsonian concern for actor incentives. If foundations have become involved in founding interest groups, what is drives their choice of which interests to support? If organizations no longer have to worry about providing exclusive benefits to members to sustain their support, what must they do to maintain foundation support? And how do concerns about maintaining financial support from third-parties complicate the advocacy work interest groups do? And what implications can we draw about the larger universe of post-1960s advocacy groups which now make up a large proportion of the Democratic Party’s political coalition?

Returns on Philanthropy: The Logic of Charitable Benefactors

In their important early refinements to Olson (1965), Robert Salisbury and James Q.

Wilson (1995) noted that interest groups were not suddenly or spontaneously formed by those with common interests. Rather, they were autonomous entities typically established by entrepreneurs who had identified both a societal interest in need of advocacy services and a strategy for recruiting would-be beneficiaries as dues-paying supporters. In their view, this made interest groups the product of a mutually beneficial exchange relationship between entrepreneurs and potential members. Entrepreneurs would seek possible financial remuneration by spearheading advocacy efforts for a particular segment of the public. That public meanwhile, would get to enjoy collective advocacy goods obtained on their behalf as well as some additional selective benefit awarded to paying supporters exclusively as a means of discouraging free- riding.

24 As Wilson noted, however, interest group organizations do not usually come together for a one-off effort. They establish offices, hire staff, and pursue numerous collective benefits on behalf of their particular constituency. All of this suggests, as Wilson famously wrote, that

“Whatever else organizations seek, they seek to survive” (1995, 10). And since survival depends on the ongoing financial contributions of members, interest group leaders must work vigilantly to maintain the exchange relationship with potential members. The result is that group leaders face constant pressure to convince current and potential members that their dues to the organization are worthwhile, reducing their temptation to free-ride by continuously providing exclusive selective benefits. In Wilson’s terminology, the constant provision of selective benefits to contributing members constitutes an essential “organizational maintenance” task for group leaders in overcoming their funding challenge. But it is not without its problems. Advocacy agendas, strategies, and tactics have to be developed with an eye toward fundraising concerns and adapted in a manner that enhances (or at least does not threaten) the group’s ability to provide selective benefits to members and maintain the exchange relationship.

Of course, under collective action theory, large, diffuse constituencies—particularly those that are disadvantaged and have limited resources—pose the most significant challenge for would-be entrepreneurs to mobilize and are therefore the least likely to have organized representation. No doubt this propensity to free-ride explains why many groups working on environmental issues, the rights of minorities, and similar causes rely on foundations and other external sources for financial support. Aside from helping these groups overcome potentially prohibitive collective action challenges, outside funding also frees interest group leaders from having to maintain difficult, if not unmanageable, exchange relationships with these large constituencies.

25 But while large grants obviate what would otherwise be a significant burden to group leaders, they impose a new challenge: establishing and maintaining exchange relationships with foundation officials. At this point, standard collective action accounts break down since foundation officials would appear to operate according to a fundamentally different set of motives than group members. In the first place, officials are not obviously the primary (or even direct) beneficiaries of the groups they support. Given their limited self-interest in the collective goods being produced by grantees, it is not immediately clear how or why officials decide to become involved in a particular advocacy field or choose to fund particular organizations.

Second, because foundation officials are not the immediate beneficiaries of the collective goods they subsidize, it also appears unlikely that they suffer from free-rider tendencies. Certainly, their ongoing support of a particular organization cannot be explained by the availability of exclusive selective benefits. Yet the possibility that funders could abandon their grantees no doubt requires group leaders to employ some form of maintenance activities to resolve their ever-present funding challenge.

Thus, we are left with a need to specify an alternative set of motivations that explains why foundation officials choose to help finance new advocacy groups and offer ongoing support.

But while an entire industry exists to advise groups (and their development departments) on writing grants and appealing to foundations for funding, there is little consensus among academics as to what motivates foundation officials. Typical accounts explain foundation support of advocacy as a response to social movements and other political disturbances. The most common view is that foundation officials want to control the direction of movement advocacy, and usually put their resources behind moderate, professionalized organizations

(Jenkins 2006). However, widespread disagreement exists over the underlying intentions driving

26 foundation involvement. Some believe that foundation officials are seeking to coopt emergent threats to their interests and the status quo (Roelofs 2005, 2003; Silver 1998), while others view officials as fundamentally cautious actors fearful of militancy and disorder, who therefore seek to encourage more mannered, less confrontational forms of advocacy consistent with their values

(McAdam 1999; Piven and Cloward 1977). Finally, a contingent of scholars argues that foundation officials are motivated by a genuine desire to aid movements, and hope to channel their energy into formal political venues because they assume this is most likely to create change

(Jenkins and Eckert 1986).

Rather than reconcile these debates over underlying foundation incentives, however, I argue that they rest on a problematic premise. All imply that the need for funding leaves interest groups pliant to the demands of foundation officials, willing to help carry out whatever particular agenda lies at the heart of foundation grant-making decisions. In other words, the resource advantage foundation officials enjoy enables them to dictate the terms of the funding relationship with interest group grantees. However, there are certainly limits to a foundation’s financial leverage and its ability to impose quid-pro-quos on grantees—the most obvious being that they cannot force agendas on grantees that blatantly contradict the preferences of their base. The tendency to ignore constraints on foundation giving are most pronounced among “cooptation” theorists (see especially Roelofs 2003), but the limits of funder power have generally received limited attention. This is problematic because acknowledging that there are limits on what officials can do with their grant money suggests that they may, in fact, have more complicated incentives than maintaining status quo power relations or pushing movement energy in directions they (rightly or wrongly) assume will be most effective.

27 What previous discussions of foundation influence on interest groups acknowledge but largely fail to grapple with is the vulnerable nature of both sets of actors in the funding relationship, not just resource dependent advocacy groups. Foundations notably occupy a controversial place in American political life. Maintaining control over vast reserves of private, tax-exempt wealth, foundation officials enjoy the freedom to spend what should otherwise be public money seemingly on whatever social initiatives interest their founders and boards.

Ostensibly this money is to go to charitable, “non-political” causes that will lead to the betterment of society. But in practice, the boundaries between political and non-political giving are open to debate. Indeed, even choosing which societal concerns to address can place foundations in political quagmires. Their susceptibility to controversy is not helped by the fact that foundations are often perceived—if not marketing themselves—as institutions that undertake projects that might ordinarily be left to the state. As a result, foundation officials find themselves frequently under attack for either failing to do enough to advance the public interest, or conversely, undermining the public interest through reckless or politicized giving.

Thus, I argue that foundations seek relationships with grantees in order to address these two opposing criticisms. Foundation officials design giving programs with an eye toward demonstrating that they are responsibly serving important social needs, thereby justifying their privileged tax status. They lean on grantees to help them deliver on the promise of these programs by performing the actual implementation. As Kenneth Prewitt writes of modern foundations and their officials:

Professional foundation officers do not just award grants. They design an integrated cluster of grants, given over an extended time frame, with a clear goal in mind— eradicating a disease, nurturing a new discipline, advancing an art form, saving a natural resource, resolving a social conflict, and so on. It is the task of the professional officer to

28 seek out institutions that will ensure that this goal is reached, and when such do not exist, to create them (Prewitt 2006, 363).

In other words, foundations rely on individual grantees to help them fulfill larger goals around which they have arranged many other complementary grants. Grantees are therefore expected to play a pre-determined role within a larger grant portfolio that features numerous other interdependent pieces.

As previous theorists have suggested, this leaves foundation officials with a significant temptation to control the agendas and work of their grantees. However, it is not because they have some intrinsic desire to protect the political status quo, fend off disorder, or nudge advocates into more effective strategies. Instead, it is because they depend on their grantees to put programs into action that were designed with an eye towards addressing a larger foundation goal which helps officials justify the foundation’s privileged tax status. Thus, relationships with grantees come with significant expectations. But they also carry risks. If foundation officials enter funding relationships with advocacy organizations because they think it will help them address their own survival concerns, any hiccups become a threat to the foundation’s survival strategy.

A grantee that deviates from expectations, either because its leaders want to go in another direction or lack basic competence, threatens to bring negative attention to the foundation and possible sanction. Any problems with grantees are liable to reverberate throughout the larger network of relationships foundation officials rely on to do their charitable work, either as supporters or collaborators. These relationships include actors from within various professions and their associations, government agency officials, and political leaders, to say nothing of other advocacy groups and philanthropies or the constituencies they aim to serve. These networks are

29 not only key in helping foundation officials fulfill their agendas, but providing validation of their efforts to serve important public interests. If they place a bet on the wrong grantee, they put their reputations on the line. Officials could lose important defenders whose support they need to counter critical assaults from their opponents. Moreover, because grantees are usually just one component of a larger, interdependent giving portfolio as Prewitt notes above, the negative consequences of one group going astray can be exacerbated by ripple effects. Any large mistakes on the part of grantees or departures from their funder’s plans might potentially weigh down or destroy an entire philanthropic campaign.

Thus, a wariness over network relationships necessarily compels and constrains much of the decision-making at foundations, driving not only the causes and groups officials choose to support, but a need to control carefully how grantees use their funds. With these weights hanging over the heads of foundation officials, the strategy of interest group leaders to answer their funding challenge becomes clear. Similar to the arguments of earlier theorists, group leaders will need to maintain a commitment to the expectations and demands of their foundation funders.

This requires, in part, obeying the terms of their grant and effectively implementing the agreed upon programs. It also requires that leaders anticipate the evolving agendas and grant-making concerns of their funders. Since the work performed by grantees helps foundation officials demonstrate their social value, group leaders need to be savvy in making sure their work continues to correspond to larger foundation priorities. They must either remain adaptable as those priorities change, or find new ways of marketing their programs to complement the foundation’s portfolio and larger goals. Above all, they must maintain an awareness that grantees drifting too far from the immediate expectations of their foundation donors or failing to anticipate the evolving concerns of their funders risk becoming irrelevant and therefore

30 expendable. The last thing foundation officials would want is allies questioning why certain grantees remain on their dockets and raising concerns about the foundation’s priorities.

However, this focus on the vulnerability of foundation officials demonstrates that there are also clear limits to the expectations or demands they can impose on grantees, an important contrast with previous theories. Given their concerns over their tax status and the need to maintain support from network allies, officials cannot abuse their resource advantage over grantees without running the risk of harmful controversy. Almost certainly, they would not be able to force grantees to pursue agendas that flagrantly contradict constituency preferences or that are strongly opposed by group leaders. Ignoring publics or issuing unreasonable ultimatums to grantees would undermine any claims by foundation officials that they serve a public interest, generating criticism from partners in their networks and putting them at risk of sanction.

Furthermore, where previous theories have not addressed limits on foundation authority to make demands on grantees, they have also overlooked limits on interest group leaders to accommodate foundation concerns. They largely assume that interest group leaders will acquiesce to the demands of their funders because of the intense pressures of the funding challenge. But as I argue, reliance on foundation funding opens interest group leaders to a new survival threat creating an additional maintenance task, one that often comes into tension with funding needs. This new survival threat emerges out of the problematic fact that foundations are not the actual constituency interest groups claim to represent. Yet, because foundation needs play a pivotal role in the group’s creation and continue to drive efforts by group leaders to stay funded, the groups themselves are inherently vulnerable to questions about the legitimacy of their representational claims. Groups established and maintained through foundation support can manage only fragile claims to represent a particular community or interest. This is especially true

31 early on in their development before they have built a record of accomplishments. Freed of having to address a collective action problem and, therefore, the need to mobilize a base of members, groups tend to have weak ties, if any, to their presumed beneficiaries. As a result, they can have difficulty deflecting criticisms that their agendas are out of step with the demands of their base. Without a strong base of supporters to counter critics, they are dangerously exposed to a variety of criticisms from unhappy members of the public or other actors competing for influence in the same issue space that they are not appropriately representing the concerns of their base. Moreover, they have few obvious remedies once those criticisms escalate. In this situation, interest groups are likely to succumb to this second organizational maintenance concern, which I refer to as their legitimacy challenge.

There are two obvious avenues for groups to pursue in the face of legitimacy controversies, but neither appears promising. First, they could shift their agendas to address the complaints of critics, a move that would likely be at odds with the needs—and hence the survival concerns—of foundation officials who would likely withdraw their financial support.

Presumably, a group could do this if they have a reasonable chance of pursuing other funding

(perhaps by turning to a membership model). Otherwise, they can try to ignore the criticisms and continue with efforts that their funders prefer. But this situation is likely to be untenable as well for both the group and the foundation. With its legitimacy in doubt, the interest group is unlikely to be taken seriously by the other actors it works with or by those it seeks to influence.

Meanwhile, foundation officials will potentially find themselves under attack for appearing either to strong-arm their grantee or funding a group that has no credibility.

However, a less obvious alternative also exists. In order to rein in their vulnerability to questions over their legitimacy, group leaders can attempt to isolate themselves from their

32 ostensible constituency. Ironically, outside-funded groups pursuing a high profile among their base exacerbate the legitimacy challenge. Public visibility increases the likelihood of constituents making demands on the group that will distract it from fulfilling the needs of foundation officials. It also puts groups in close proximity to other actors in the issue space who will either make their own demands on the group’s agenda or treat it as a threat to their own efforts to represent the same constituency. In each of these scenarios, groups open themselves to problematic questions over whose agendas they really serve. In instances where these questions erupt into full-blown controversies, group leaders can potentially avoid the two problematic strategies mentioned above or simply try to remove themselves from public view and thereby shield themselves from their legitimacy problem. By extricating themselves in this way, they have more flexibility to maintain their exchange relationship with foundation officials. Of course, they can also avoid such problems altogether by keeping a distance from their publics from the beginning.

Freed of the accountability to their constituents, groups will face new challenges, however. Foundations rarely want to serve as a primary benefactor forever and groups will need to identify additional sources of funding. How they do this will depend on the perception of alternatives around them. If they continue to depend on foundations, they will need to adapt themselves and their programs to the portfolio of grants maintained by potential funders. This will further distort the priorities of their advocacy to maintain consistency with the preferences of elite donors and the professional networks intertwined in their areas of giving. They will have more freedom to make these adjustments more freely, in part because of the distance they enjoy from the base and in part because of the independent credibility they will have gained from accomplishments over time, providing them with important insulation from criticisms that might

33 have proven fatal earlier. But the cost is that they will be focusing on agendas that have less and less to do with the expectations of an identifiable base.

Evolving Foundation Needs

The preceding discussion describes the incentives of foundation officials as fixed.

However, as an advocacy field develops, and indeed, as the field of philanthropy has evolved since the 1960s, their relationship with grantees changes too. In particular, the fears of officials that an errant grantee might bring sanctions on the foundation diminish over time. Three reasons stand out as to why this is the case.

In the first instance, the urgency of foundation officials described above depends heavily on the newness of the field in which their grantee is embarking. The newer the field, the higher the stakes of an individual grantee’s failures by calling into question the new direction in which the foundation has decided to move. For example, the MALDEF grant heralded new terrain for

Ford officials on several fronts. Most notably, Ford was doubling down on a commitment to support civil rights work which had until then been supported only sporadically by much smaller foundations. The move was a clear provocation to conservative lawmakers who did not view such work as apolitical charity belonging within the purview of tax-exempt foundations. But because there had been little precedent for major philanthropies like Ford to work on civil rights, officials were putting the foundation in a vulnerable position. In the short term, such an event could give conservative lawmakers the footing to punish Ford and even make philanthropic support of civil right taboo once again. But the more that time passed, philanthropic support for civil rights would become normalized, diminishing the risk that a single grantee posed to the

34 foundation’s other projects or its larger ambitions. Thus, as a field develops and stabilizes, the interdependence between foundation officials and grantees will diminish.

Second, time also allows for a grantee to develop its own identity separate from the foundation. As noted above, foundations do not anticipate funding a grantee in perpetuity. The longer that a grantee has been around, the less responsibility the foundation will bear for its successes or failures, allowing foundation officials to dial back some of their concerns and even financial support. Foundation officials will become more hands-off in their dealings with grantees.

The final way in which time affects relationships between foundations and grantees is less situational than developmental. Just as there has been an explosion in advocacy organizations since the 1960s, foundations have experienced their own significant growth.

According to data from the Foundation Center, the number of foundations has gone from approximately 22,000 in 1975 to nearly 87,000 in 2014 (Zinsmeister 2017, 376–77). While the absolute numbers are inflated by the sheer amount of small family and community foundations, the larger trends to which this data point are nonetheless instructive of just how immense the philanthropic sector has become and the equally daunting challenge of monitoring it. As the philanthropic sector has become larger and support of advocacy more routine, the level of political and regulatory scrutiny facing foundations has gone down significantly too. Were a project like MALDEF undertaken more recently, the pressures would be much different than they were in the 1960s.

The last point might suggest that the case study analysis of an organization founded in the

1960s would, therefore, be less generalizable given the changing institutional environment in which foundations operate today. However, it would not be entirely accurate to suggest that

35 foundation officers operate with less concern for their own organizational survival either.

Whatever level of political and regulatory scrutiny that has been lost in the expansion of the philanthropic sector has more than likely been made up by a rising level of internal professionalization. The philanthropic sector has developed its own norms and procedures for grant-making with established rubrics of good governance. These rubrics often emphasize grantee performance in ways that foundation officials rely on to establish their own sense of legitimacy, not just to an external audience of lawmakers and regulators, but an internal audience of fellow professionals. The effect, as scholars like Peter Frumkin (1998) have argued, is an ongoing cautiousness among foundation leaders that encourages them to assert control over grantees and limits their tolerance for risk. The result is that while we may see an evolution in concerns over how foundation officials deal with a particular grantee over time, we should expect to see somewhat similar temptations on the part of foundation officials to assert control over new grantees, especially those established as beachhead entries into risky new fields.

Previewing the Case Study

MALDEF has faced criticism over the years for its lack of membership and for its limited accountability to the Mexican American public on whose behalf it claims to speak. Critics note that its dependence on foundation funding leaves it more beholden to the preferences and priorities of elite funders, ignoring constituent needs. There is often debate over whether this means MALDEF has either become too docile and submissive to elite funder agendas or too ideologically rigid and uncompromising in its advocacy. Echoing the cooptation-by-elites arguments of resource mobilization theorists, some claim that MALDEF is not confrontational enough in its tactics and pursues politically safe agendas that appease cautious, if not

36 conservative, foundation donors (Acuña 2012; Flores 2008; Márquez 2003). At the other end of the spectrum, some have argued that third-party funding frees MALDEF from democratic accountability to its base, giving it few incentives to compromise on its ideological priors in the interests of achieving tangible victories for its base (Skerry 1993; Sierra 1991).

Márquez (2003) offers the strongest evidence for the former claim, comparing the agendas of MALDEF, the National Council of La Raza (NCLR) and the Southwest Voter

Registration and Education Project (SVREP) with the more grassroots Texas Industrial Areas

Foundation (Texas IAF). Predictably, the reliance of the Texas IAF on grassroots financial support leaves it an outlier in terms of its agenda and use of confrontational tactics. Yet, Márquez also shows how the Texas IAF became more isomorphic with its foundation-funded peer organizations as it has had to turn to foundations for supplemental support in the late 1990s. It is not so much that foundations strong-arm their agendas on grantees, he notes, but subtly make clear their priorities when dangling the possibility of funding, thereby “shaping the market for successful organizing.” In this way, they have been able to influence the direction of Mexican

American politics, since the groups desperate for funding have little recourse to object without potentially losing out on grant aid to more amenable interest group entrepreneurs.

Conversely, Sierra (1991) and Skerry (1993) have demonstrated the ways in which

MALDEF’s dependence on foundation money has enabled—if not encouraged—the group to take much more extreme positions on major policy debates than peer organizations that are more financially dependent on members. Sierra, for example, describes the way in which leaders of other activist organizations accused MALDEF of engaging in “purist politics” during the 1980s amnesty debates that ultimately led to the Immigration Reform and Control Act of 1986 (IRCA).

MALDEF leaders typically refused to consider any compromises in exchange for an amnesty

37 victory, while its peers, especially labor groups like Cesar Chavez’s United Farm Workers

(UFW), were more than willing to consider such terms to get their members what they wanted.

Skerry likewise notes that MALDEF’s reliance on foundation support freed the group— intentionally—from prioritizing the immediate self-interests of would-be members and honoring their short-term biases in choosing issue agendas. But this has come with a price. Skerry argues that MALDEF officials have become over-insulated from any pressures to resolve prolonged political and legal conflicts. Lack any urgency for reaching deals, MALDEF leaders too often hold firm to their ideological priors on a variety of issues, opposing negotiated settlements in areas like school finance and voting rights, as well as IRCA.

Though seemingly in contradiction, the two accounts are not irreconcilable. Both sets of observations reflect real aspects of MALDEF’s tendencies to display both cautious conformity to professional standards and the policy agendas of their elite funders as well as an ideological rigidity. The variance can be explained by the way MALDEF and Ford leaders have balanced the pressures of various external audiences whose support—or lack of it—play a much larger role than these previous accounts have considered. The ensuing case study considers first, how Ford officials came to the decision to fund MALDEF’s formation in 1968. As the foregoing theoretical discussion makes clear, the decision was not simply a product of foundation leaders deciding on their own that Mexican Americans needed a civil rights litigation firm, but because of the legacies of earlier charitable investments and pressures from allies in their networks. As

Chapter Two lays out in greater detail, Ford’s history of investments in combatting poverty had come to be seen by its program officers as well as by its many allies in the upper echelons of the

Democratic Party (notably members of the Johnson administration), government agencies, and in activist and policy circles as ultimately being limited without addressing civil rights. If they

38 wanted their earlier urban poverty grants to bear fruit and demonstrate an ongoing commitment to combat important social problems to allies in their networks, funding a civil rights litigation firm for Mexican Americans presented a next logical step.

Chapter Three details the evolution of Mexican American advocacy that ultimately led a group of lawyers in San Antonio to approach the Ford Foundation to support their efforts to establish an NAACP LDF for Mexican Americans. As that chapter begins to lay out, however, these attorneys represented just one specific strain of thought among a diverse population of

Mexican American political players. Chapter Four covers the first two years of the organization’s existence and highlights the problems that MALDEF faced in attempting to speak on behalf of all Mexican Americans despite the population’s internal diversity—a problem compounded by the fact that MALDEF’s primary client was in fact a wealthy national foundation. Other Mexican

American political leaders and activists in San Antonio and Los Angeles, where the organization maintained offices, viewed the group as either a threat to their turf or a competitor for influence and viewed its foundation largesse with jealousy. Quickly intuiting the inherent fragility of

MALDEF’s representational claims, they cannily launched attacks questioning its commitment to Mexican American interests as a means of leveraging some of the organization’s resources and pushing its agendas in their preferred direction. Similarly, MALDEF found itself overwhelmed by demands from the local Mexican American public for legal assistance despite the fact that its primary mandate was to engage in precedent-setting test case litigation. Pressure from both other political activists and the broader Mexican American public to accommodate their particular concerns, MALDEF leaders found themselves with little recourse but to comply as much as possible. They understood that their refusal to make accommodations could prolong

39 public criticism and eventually undermine the organization’s basic legitimacy, imperiling its survival.

In so doing, however, MALDEF risked endangering its ongoing financial support from

Ford. Ford officials had after all provided the bulk of MALDEF’s funding to build credibility within their own networks as a responsible public charity. They could not afford to have the agenda of this major new grantee hijacked by the public or other Mexican American activists.

Indeed, Ford’s allies in government and within the larger legal advocacy and civil rights arenas were critical of MALDEF’s development, viewing the organization’s accommodation of legal aid cases and its support for the agendas of other Mexican American activists as distractions from what it should be doing. Ford could not tolerate such distractions without endangering their own, larger civil rights agendas and losing the support of network allies they needed both for cooperation and as sources of validation of their tax-exempt status. They had after all come to a shared assessment with these allies that what Mexican Americans needed was an institution like the NAACP LDF if they were going to overcome the problems of poverty in the barrio. The more Ford officials tolerated MALDEF’s divergence from the kind of work performed by the

NAACP LDF, the more the foundation’s reputation for administering grants effectively would take a hit.

With MALDEF mired in constant attacks and controversy and generally prevented from adhering to the original terms of their grant, the pressure on foundation officials forced them to intervene with their March 1970 ultimatum to the group’s board of directors. Told that their funding might be cut-off if they refused to fire the executive director, move the organization’s headquarters away from major Mexican American population centers, and expand the number of non-Mexican Americans trustees, MALDEF’s board of directors ultimately caved. Seeing no

40 alternative means of raising money, they had little other choice. They were able to convince Ford officials to approve a relocation of the headquarters to San Francisco, which still had the benefit of technically being in the Southwest but importantly had few Mexican Americans in its boundaries (Obledo 1970c, 10–11). The lesson learned was that by being based out of San

Antonio, MALDEF had been too accountable to its public. Its financial survival, however, depended on maintaining greater accountability to the Ford Foundation and allies in its networks

(to whom the foundation itself was accountable).

From this initial turmoil, MALDEF still struggled to find its footing. As Chapter Five recounts, the staff and the board still believed that popular support from Mexican Americans was key to organizational survival. Rather than recognizing the threat public visibility posed to their organizational legitimacy, they believed that they needed to double down on a more effective publicity effort which would increase private donations and, perhaps more importantly, lend their efforts legitimacy. This effort led to the organization overreaching in its litigation efforts and failed to attract much in the way of donations. As the Ford Foundation tried to back away from serving as the primary funder for MALDEF by the mid to late 1970s, the leadership instead decided to pursue funding from multiple foundation and government sources rather than public support. Ultimately, the organization began to stabilize itself by developing discrete program areas and departments that each had a particular focus according to the priorities of likely funding sources. Rather than court popular support for an agenda, they had begun trying to adapt their own agenda preferences to what foundations wanted, creating a much more bureaucratized and inflexible organizational structure that also incentivized the organization to remain uncompromising in pursuit of policy principles backed by funders. But before we follow along this organizational trajectory in more detail, we first turn in the next chapter to the evolution of

41 the Ford Foundation and the lead up to its decision to found a Mexican American civil rights litigation firm.

42 CHAPTER 2 ORIGINS: FORD, THE RISE OF CAUSE LAWYERING, & THE FOUNDING OF MALDEF

The official history of MALDEF typically begins in late 1966 and early 1967 when a

Mexican American lawyer from San Antonio, Pete Tijerina, first reached out to staff at the

NAACP LDF to discuss the possibility of expanding civil rights legal practices for Mexican

Americans (Elder 1966; Greenberg 1967). In the story MALDEF tells about itself, Tijerina grew frustrated that his Mexican American clients constantly had their cases tried by all-white juries and local judges refused his requests to seat more Mexican American jurors (Garza 2000; K.

O’Connor and Epstein 1984). Then-director of the NAACP LDF, Jack Greenberg, responded to

Tijerina’s letter by inviting him to attend the group’s annual conference, which led to more conversations, and eventually, the decision to put Tijerina in touch with Ford Foundation officials who had just gotten involved in funding his own organization.

However, the circumstances that led to discussions between Ford officials and Tijerina, and their subsequent $2.2 million grant to launch MALDEF have much deeper roots—with profound consequences for the development of the organization, and the representation of

Mexican-Americans as well. This chapter lays out the history of how officials at the Ford

Foundation came to support a coterie of Mexican Americans from San Antonio who wanted to start a civil rights litigation firm. As this history shows, Ford Foundation officials were neither passive donors responding to pleas for charity out of purely altruistic motives, nor were they seeking to co-opt a movement. They were actors deeply embedded in numerous philanthropic projects intended to enhance their reputation with elite partners inside and outside government

43 and activist circles. Facing a significant threat of sanctions from conservative opponents in

Congress and committed to multiple allies who expected them to sustain and augment earlier social investments, the marriage with MALDEF’s founders had its own purpose: to help Ford officials enhance their ongoing work and thereby protect their fragile tax-exempt status. For

Tijerina, who had his own personal and organizational survival incentives, this would create tension. Within two years, those tensions would come to a head, forcing a showdown between

Tijerina and his donors, one that he would lose, pushing MALDEF on the pathway to fulfilling the professional vision of legal advocacy as understood by Ford officials and their allies.

Ford: Anti-poverty, Court Reform, and Civil Rights

Pete Tijerina’s introduction to Ford Foundation officials in 1967 had fortuitous timing.

His idea for a litigation firm defending Mexican American civil rights aligned with ideas already under discussion at the foundation. Their decision to provide general support to the NAACP

LDF only a year earlier marked a conscious transition point within the foundation to take it in a bold new direction on two fronts. It demonstrated, first, a commitment to involve the foundation in civil rights efforts which large foundations like Ford had long avoided as potentially “too political.” Second, it positioned Ford to be at the forefront of expanding test-case litigation efforts, then seen as a cutting-edge tactic for generating social change. Believing that the

NAACP LDF had proved the efficacy of those tools, foundation officials were eager to expand the use of impact litigation by other demographic groups whom they understood to be facing similar burdens of discrimination as African Americans (Harrison and Jaffe 1972).

From a theory-building standpoint, the important question is, why. What did Ford stand to win or lose over the decision to fund NAACP LDF and to franchise out its model of

44 advocacy? What did they want from their investment in activists like Tijerina? Why did they not stick to safer projects than civil rights advocacy which surely put them at risk of a backlash from

Southern lawmakers? In both the Ford case and beyond, foundation officials face a simultaneous desire to demonstrate credible efforts to address important social needs—to show that they are not just bastions of privilege—while also staying within the bounds of the sorts of actions that could be engaged in by a charity.

Ford’s emergence on the national and international stage is a reflection of the extreme circumstances that led to its ascent to national and even international prominence. Established initially in 1936, founders Henry Ford and his son Edsel were not primarily motivated by philanthropic concerns. Their most immediate goal was to avoid having to pay new inheritance taxes passed by Congress the previous year and prevent a forced sell-off of the stock they owned in the Ford Motor Company, fearing this would threaten their family’s future control over it.

Their plan to avoid this fate was to establish a foundation which would receive 90 percent of the company’s total shares upon their deaths, under the revised wills of each man. These shares would not be taxed, while the remainder could go to their heirs who would now have a significantly lowered tax burden. Meanwhile, they chose to have the shares slated for the foundation converted into non-voting stock, with their heirs holding onto the voting shares, leaving them firmly in control of the company (Macdonald 1956, 132; Sutton 1987, 42).

What they did not anticipate in this arrangement was passing of both men in quick succession. Edsel, who passed away in 1943, actually preceded his father by four years, which meant that the foundation acquired a 90 percent stake in the country’s wealthiest corporation nearly all at once. The windfall made their foundation the country’s wealthiest as well.

“Accepting the low government valuation of $135 a share,” Allan Nevins and Frank Hill write in

45 their definitive history, the foundation “held Ford stock worth nearly $500,000,000, but most experts thought that its total assets were more realistically computed at a figure several times higher” (Nevins and Hill 1963, 414). The clever maneuvering to keep company control in the hands of the family had, in the process, unintentionally created a gargantuan endowment that

“ultimately proved to be a turning point in the history of the nonprofit sector” (Zunz 2012, 173).

This had drastic consequences for the operations of the foundation. It had a rather modest early existence operating much like a small family foundation. Henry helmed the operation with the support of a small board, overseeing an endowment estimated at $30 million in the early

1940s (Nevins and Hill 1963, 412). Its funds were exclusively directed to Michigan-area charities, museums, hospitals, and other personal projects of Henry’s, like his Edison Institute in

Dearborn. But the sudden windfall following Edsel’s and Henry’s deaths would have profound consequences. For one, it immediately put the foundation, and Edsel’s son Henry II, who assumed leadership of both the company and the foundation in 1945, under an intense public spotlight for controlling an endowment that was perhaps three to five times larger than even the

Rockefeller or Carnegie foundations.5 That the Fords appeared to be getting away with a tax- dodge only exacerbated the situation. The bequest even sparked debates in Washington about limiting tax-exemptions to prevent others from imitating the Fords and exploiting inheritance loopholes, producing the Revenue Act of 1950 (Nevins and Hill 1963, 413–14; Macdonald 1956,

42 & 133). The law had no direct impact on the Ford Foundation but did call for penalties on those who, like the Fords, established foundations primarily for personal benefit as well as on those who engaged in self-dealing with their foundations (Lowndes 1951).

5 Sutton (1987) claims that Ford had a valuation of roughly $417 million in 1951, compared to $122 and $170 for the Rockefeller Foundation and Carnegie Corporation, respectively. 46 But even without the controversy, there were practical problems raised by the foundation’s newfound wealth. During its first decade, the foundation gave roughly $1 million annually and, aside from Henry Sr., had only two other trustees (Magat 1979, 18; Sutton 1987,

44). It could no longer operate on such a small scale. Giving would need to increase significantly to keep up with the size of the new endowment, particularly as it was beginning to draw strong revenues as the fortunes of the Ford Motor Company improved under the younger Henry’s leadership (Nevins and Hill 1963, 414; Curti and Nash 1965, 229). Spending all that money, and spending it effectively, would present a major challenge. The foundation’s history of small gifts to local Michigan charities, the Edison Institute and the namesake hospital of his grandfather, did not point to any obvious directions either for an expanded giving agenda. Moreover, its suddenly elevated profile ensured a deluge of unsolicited funding requests from which its leaders would face the unenviable task of choosing. Meanwhile, the timing came at a moment when philanthropy itself was changing. Major foundations were under increasing pressure to move beyond noblesse oblige models of giving to use their money strategically with an eye toward having broad social impacts (Macdonald 1956, 138; Nevins and Hill 1963, 414).

Henry II responded by following the blueprint he used at the company. He recruited the smartest people he could find, respected elites from the business and university worlds with an eye on pressing social needs, to provide advice and begin to bring the foundation in line with the expectations of a major national philanthropy. Importantly, this also had the effect of giving the foundation credibility in the face of public criticisms. To the board, Henry notably recruited Karl

Compton, then president of MIT and a trustee at the Rockefeller Foundation, Donald David, dean of the Harvard Business School. And it was they in turn, who brought aboard advisors with similar backgrounds in academia and government administration to serve on a study committee

47 identifying areas for the foundation should invest its money. This committee, led by H. Rowan

Gaither who would serve as Foundation president for two years in the mid-1950s was himself director of RAND and many of the officials he brought aboard were of similar ilk, operating in a space between government and academia, applied social science and technocratic expertise. In other words, by the late-1940s, the foundation was well on its way in pursuit of national prominence, led by ambitious figures confident in the power of academic social science to identify and address the most significant national concerns.

Of course, as foundation leaders soon learned, the most significant national problems could not be easily agreed upon through social scientific analysis. The board and the academics brought on the commission underestimated the extent to which their agendas might provoke political controversy. The foundation would brush up against congressional criticism frequently by the early 1950s as the scope of its ambitions became clear and generated public skepticism.

Ironically, Henry Ford II’s desire to rescue the foundation’s reputation by addressing its earlier penchant for miserliness failed to save it from further political scrutiny. The effort to recruit high profile board members and to raise the Foundation’s profile in a good-faith effort to demonstrate its responsiveness to national concerns created a brighter spotlight. The unexpected backlash to their blue ribbon committee’s report brought this point home.

Released in 1949 and based on over one thousand interviews with academic experts who were asked about the most pressing issues facing the country, the report placed heavy emphasis on international concerns (The Ford Foundation Study Committee 1949). As former official

Francis Sutton has noted, Foundation board members took away from it that the biggest threats to be addressed were authoritarianism abroad and that they had an obligation to maintain international peace through the support of development programs abroad. In the wake of the

48 report, Ford officials quickly adopted the motto “To advance human welfare” which evoked their newfound international outlook (Sutton 1987, 47–49).

The emphasis on international development, however, brought criticism from both the left and the right. From the right, it became an immediate target of attacks for pushing a left- ward agenda that harbored communist sympathies. As Dwight Macdonald described in his 1956 account of the foundation, right-wing media made connections between its international agenda and a nefarious commitment to “world government” and communism. Columnists like George

Sokolsky and Westbrook Pegler and even front-page reports in the Chicago Tribune alleged a conspiracy between Ford’s various advisors and staff who had previous connections to supposed

“un-American” projects like the Marshall Plan (Macdonald 1956, 25). Meanwhile, officials found themselves swept up into two congressional investigations almost immediately in the transition to national prominence: the 1952 Cox Committee and the 1954 Reece Committee.

Though widely acknowledged as embarrassing witch hunts, internal reports suggested that board members felt chastened by the negative attention the hearings attracted. Ultimately, the trustees chose to pursue pre-emptive cutbacks of potentially controversial programs and went on a major domestic spending spree to purchase good will. In 1956, they surprised dozens of hospitals and universities with major grants totaling $500 million with little warning and few stipulations as to how the money was to be spent (A. O’Connor 1996, 591; Sutton 1987, 83). Historian Roger

Geiger has even suggested that the fear of backlash resulted in the name chosen for Ford’s

Behavioral Sciences Program, the program for which the behavioralist school of political science was born. As he notes, “one of the [program] architects, Donald G. Marquis, later related, there was a fear that ‘social’ science would convey implications of socialism or social reform to the

49 conservative foundation trustees—a consideration that testifies to the political environment in which the behavioural sciences programme would have to exist” (Geiger 1988, 327).

One of the ironies of the scrutiny Ford’s international programs received is that it ultimately had a more constraining effect on Ford’s smaller domestic programs. Sutton notes that the criticism over their international development projects made officials more concerned about domestic giving which they understood to be more visible to the public and Congress and, therefore, even more likely to draw controversy if they were not more careful (Sutton 1987, 84).

In fact, the biggest casualty to result from the hearings was Ford’s spinoff charity for domestic issues, the Fund for the Advancement of Education (FAE). Although technically separate from the Ford Foundation, the Fund was founded and led by former executive staff of the foundation, receiving $57 million directly from Ford over the length of its existence (Macdonald 1956, 51).

The Fund’s ongoing support of desegregation research studies leading up to Brown v. Board of

Education (1954), funding of teacher education programs and school reform, and efforts to work with settlement house groups to improve race relations in New York City attracted accusations of domestic subversion from the Reece Committee (Raynor 1999, 204). Nervous over the independence of the FAE and the likelihood that its ongoing activities would draw more scrutiny, Ford trustees shrank the budget in 1957 and reabsorbed the group so that it operated under the auspices of a newly established education program within the foundation (Woodring

1970, 72–73; Ferguson 2013, 48). A similar fate also met another independent subsidiary foundation, the Fund for the Republic, which had been established by Ford and run by former foundation president Paul Hoffman. Its work on civil liberties issues had drawn the ire of the committee investigators precisely because it supported efforts questioned the anti-communist hysteria of the early 1950s which under-girded the committee hearings. The Ford Foundation

50 which had given the group its initial funding of $15 million in 1953 fully disowned the organization by 1957 (Woodring 1970, 73; Ferguson 2013, 48).

Thus, despite the criticism of the foundation’s international programs, Ford trustees developed greater cautiousness on the domestic front. That the two committee investigations failed to result in significant penalties temporarily convinced them that international work was safer than domestic programs (Sutton 1987, 84). As Richard Magat has explained, Ford spent much of the rest of the 1950s preoccupied with public attitudes about the Foundation, commissioning frequent polls and working with public relations firms (Magat 1999, 298).

Moreover, trustees were at pains to avoid anything relevant to government programs:

We have come a long way in our willingness to confront public-policy issues directly. We were wary for most of the 1950s, after our few forays into policy areas (e.g., the Fund for the Republic's work on civil liberties) provoked an intense reaction in Congress. For several years thereafter, our programmatic attention to government policy was largely oblique (Magat 1979, 83).

The same cautiousness has been argued about the Foundation’s support of civil rights advocacy throughout the 1950s. Despite the Foundation’s lofty rhetoric to promote political freedom, rights, and democracy internationally, observers noted with irony that it largely failed to come to the aid of the movement for rights on their home soil:

The Foundation’s slowness to respond to the rise of civil rights concerns in the 1950s and to the plight of blacks and other disadvantaged groups at home may have stemmed from its caution in engaging in controversial domestic matters at a time when it felt ill- understood and attacked by conservatives. There were those who later thought that it was easier for the Foundation in its early years to concern itself with the poor and disadvantaged in distant places than with those within the United States (Sutton 1987, 84).

51 According to former staffer Waldemar Nielsen, the retreat lasted longer than it might have otherwise because of the new president the board of trustees recruited in late 1956, Henry

Heald, to bring stability to the foundation in the wake of the hearings and controversies. An engineer by training, Nielsen described Heald as a humorless, unimaginative administrator who desired an even more conservative course than the chastened trustees intended. Heald “had no interest or experience in international matters; he actively disliked ‘reformers,’ including such black spokesmen as Roy Wilkins and Martin Luther King Jr., whom he considered

‘propagandistic politicians’; and he had no sympathy for ‘impractical men of ideas,’ including social scientists in general” (Nielsen 1972, 90). Such a disposition allowed Heald to establish a mutual respect with former foundation antagonist, Congressman Carroll Reece, Nielsen notes, but conflicted with the attitudes and visions of the trustees. Internationally, he emphasized population control efforts in developing countries, forgoing the ambitious development programs that had been the foundation’s focus before. Meanwhile, he emphasized education domestically, but rather than push transformative agendas, usually preferred to award supplemental support to universities. This limited vision of philanthropy contrasted with that of the trustees and effectively brought the foundation back to a primarily charitable role, abandoning the hopes of serving as a prominent catalyst for change that drove its initial emergence on the national scene.

On the trustee level, Heald deftly managed to keep the board’s influence and broader ambitions in check by avoiding them and making decisions unilaterally before trustees had a chance to overrule him (Nielsen 1972, 91). Heald had a somewhat more difficult time with staff who used similar tactics to pursue ambitious projects, at least at the margins. One of the biggest issues emerging as a national concern in the late 1950s was growing juvenile delinquency in urban areas. However, Heald was unwilling to commit Ford to funding anything more than

52 research on this and related issues of race and urban affairs, given his innate conservatism and justifiable fears that urban area programs addressing “race relations” issues would generate controversy. Nonetheless, he soon found himself outmaneuvered by staff who were developing relationships with federal officials to launch “direct action” programs on their own or cultivating support from trustees for program approval without going through him (R. Cohen 2004, 23; A.

O’Connor 1996, 594). Simply funding research did not leave the domestic policy team, nor trustees, feeling engaged in “solving problems” which they believed to be a central aspect of their work. As historian Alice O’Connor writes:

Trustee discontent over the situation created an opportunity for newly recruited staff members, who in filling the vacuum over the next five years reconstructed the Public Affairs Program to focus on urban social problems, reoriented research to favor experimental interventions and demonstration projects over academic knowledge gathering, and introduced a more activist style of grant making to the foundation. However, the reinvigorated Public Affairs Program also acted within institutional and ideological limits. Factionalism and a perpetual preoccupation with public relations created hurdles for the staff and set restrictive parameters on program directions. Staff members needed to hone their political skills to get programs through, at times cultivating independent relationships with board members at the risk of alienating top staff executives (A. O’Connor 1996, 594).

One of the more notable officers managing to work around Heald was Paul Ylvisaker, a young political scientist who had been hired in 1955 to work in the foundation’s social policy arm, the Public Affairs division (A. O’Connor 1999, 174–75; Zunz 2012, 211). By 1958,

Ylvisaker succeeded in bringing the foundation into a more active role addressing the delinquency and urban deterioration issues. Ylvisaker would ultimately champion a major reconceptualization of the causes of poverty and urban strife. The accounts he favored were those newly being pushed by sociologists Richard Cloward and Lloyd Olin, which went beyond pathological explanations toward structural factors, especially race, as important causes of

53 poverty (Raynor 1999; Ferguson 2013; Marris and Rein 1973). But for Ylvisaker, the appropriate response was not simply to provide material support to the poor and ensure expanded access to economic opportunities. Instead, he believed that inner cities needed a “comprehensive overhaul and harmonization of the city’s public education, social welfare, and justice systems” (Ferguson

2013, 59). This would become the basis of Ford’s “Gray Areas” programs, a neologism invented by Ylvisaker who wanted to stay away from terms like “ghetto” or “deprivation” similar terms that would bring to mind racial dimensions (Ferguson 2013, 58; A. O’Connor 1996, 605–6,

1999, 174).

Ford initiated what would become the Gray Areas program in 1960 through a series of grants to public school systems named the Great Cities School Improvement program. Ylvisaker believed schools in blighted urban areas represented potential “anchors” through which he might eventually be able to identify and provide necessary public services for the larger community (A.

O’Connor 1996, 608). Seven major cities received grants in the first year, not including money that went to a pre-existing program in New York City, Mobilization for Youth, which would be considered separate but reoriented to follow a similar model (Marris and Rein 1973, 16). But while Ylvisaker believed that a mix of cooperative social service agencies in distressed urban neighborhoods was necessary, he also worried about their potential to devolve into unresponsive bureaucratic operations. Thus, he argued that success of these service interventions hinged on the creation of self-governance mechanisms that encouraged widespread civic participation (A.

O’Connor 1999, 175). The Great Cities School Improvement program which evolved into the

Gray Areas program thus combined both social services and local self-governance as central components and ultimately served as models for Community Action Program, a cornerstone of the Johnson administration’s Great Society agenda (Marris and Rein 1973, 164–71).

54 The initiation of the Gray Areas programs reflected the increasing sentiment among staff and trustees at the foundation that they again needed to confront the problems of urban poverty and engage public concerns directly. While the scandals of the 1950s and Heald’s conservative leadership diminished their capacity for more proactive engagement by the end of the decade, foundation staff and trustees felt significantly empowered at the beginning of the 1960s to fulfill their perceived professional roles. In 1961, trustees succeeded in authorizing an internal review committee over Heald’s objections, resulting one year later in a report that returned more autonomy to board members to develop and oversee funding programs while limiting the president’s authority. It also importantly charged the Foundation to invest more in the area of civil rights and make efforts to secure political and economic equality (Nielsen 1972, 91–92).

Such a charge, of course, vindicated Ylvisaker’s efforts with the Gray Areas programs which, despite being framed as anti-poverty efforts, consciously involved a civil rights and race dimension as noted above.

Thus, civil rights went from being a verboten concern at the beginning of the 1950s with only modest research grants to universities and a handful of organizations like the NAACP LDF and the Urban League to a central (if still disguised) concern through Ylvisaker’s maneuvering.

But in 1962, the foundation trustees indicated their eagerness to support civil rights and anti- poverty efforts. This positioned Ford to enter territory that would enhance many of the increasing linkages with federal, state, and local agencies, relationships that Ylvisaker had been building through the Gray Areas programs. More importantly, it would position the foundation to become a key partner with the Kennedy administration which was likewise committing itself to anti- poverty and discrimination issues. Notably, Ford staff in the public affairs division had already been courting the President’s Committee on Juvenile Delinquency (PCJD) since its

55 establishment in 1961, pressing it to adopt the principles of the Gray Areas and MFY programs.

By 1962, Ylvisaker had also successfully convinced the PCJD to provide funding for the programs as well (A. O’Connor 1999, 177–78). Eventually, the connections that Ylvisaker and other Ford colleagues exploited turned the foundation into an important partner backing experimental demonstration projects that could later be adopted by federal agencies.

If the Gray Areas programs took Ford from a concern with poverty and juvenile delinquency and brought it into work on poverty, racism, and civil rights more generally, it was also notable for enhancing a parallel program in litigation and court access. If the roots of poverty were intertwined with racial discrimination, limited economic opportunities, and lack of self-determination, Ford and its government partners also came to see how limited access to courts exacerbated those problems. Without the ability to afford legal representation, the poor could not very well pursue redress for wrongs and claim their rights. One of the innovative social services that Gray Areas programs were therefore supposed to provide residents was legal aid.

But again, this concern with law and court access did not emerge suddenly with Ylvisaker. It was part of a stand-alone program at Ford thanks to the earlier efforts of program officer William

Pincus and already becoming an important actor within the broader legal profession.

Interestingly, this commitment to legal access in the late 1950s—both for Pincus and subsequently, the Ford Foundation—came about quite by accident. Pincus arrived at the foundation around the same time as Ylvisaker primarily because of his experience in government. He had held several prominent administrative positions in Washington over a short, ten-year career, notably with the Bureau of the Budget, both Hoover Commissions, and the

House Committee on Expenditures in the Executive. But as the only lawyer at Ford, Pincus quickly found himself assigned to law-related grants administration to take on the growing

56 number of proposals they were receiving. Offered little guidance in overseeing this new area,

Pincus decided to develop his own needs assessment and steer funding accordingly (Ogilvy

2015, 34; Pincus 1966). As law professor J.P. Ogilvy explains, “[Pincus] did not buy the idea that merely supporting a certain group of people, as important as the Foundation thought they were, was justification for making a lot of grants. […] He thought, ‘Well, maybe what’s missing here is finding some projects that will improve the administration of justice,’ something that will serve the greater public interest of the American people” (2015, 34–35).

His first area of concern involved criminal justice and representation of the accused (this was, after all, the late 1950s, before Gideon v. Wainwright (1963) established a right to counsel)

(Ogilvy 2015, 35; Magat 1979, 109; Pincus 1966). But his interests quickly shifted to legal access more generally. In recognizing that there were few options for the criminally accused to be represented, he also became troubled by the fact that the poor as a whole had limited access to legal representation. Legal aid societies of the time tended to refuse criminal cases as a general policy, but they also lacked sufficient resources to meet the needs of the poor in civil court

(Pincus 1966; Johnson Jr. 1974, 21). To address the situation, he decided he needed to pursue a broad legal reform effort, rather than just direct funding to criminal defense work.

In 1958, Pincus decided to attempt direct reforms of the legal education system as a first step. Through conversations between the National Legal Aid Association (renamed the National

Legal Aid and Defender Association (NLADA) the following year), the American Bar

Association (ABA), and the American Association of Law Schools (AALS), he jumpstarted a collaborative effort to direct more students into public service careers which was then considered a backwater of the profession. He and the NLADA were able to convince the Bar and law schools to support the formation of a National Council on Legal Clinics (NCLC) in 1959 to be

57 funded by Ford (Pincus 1980b, 23; Ogilvy 2009, 9). Over its six-year existence, the NCLC was tasked with expanding the number of clinical practice programs at law schools while also funding internships where students could work with legal aid groups or municipal government agencies, promoting a greater ethos of public service among law students (Magat 1979, 108–11;

Ogilvy 2015, 34–42; Pincus and Hall 2000). As Pincus later recalled:

The funding of this program by the Ford Foundation marked a departure from the traditional general and unquestioning support of higher education. Along with others to come, it manifested an effort to reform an important area of higher education to complement needed social changes (Pincus 1966, 889).

Initially, he supplemented these law school programs with research grants to NLADA and others to assess the state of criminal legal defense programs and programmatic support, reasoning that improving legal representation for the accused would be less controversial at Ford

(Pincus 1966, 890). But by 1962, he and Ylvisaker began to address civil law as well. Concerned that most legal aid societies continued to operate in downtown districts away from the poorest neighborhoods, Pincus convinced his colleagues to incorporate localized legal services into their

Gray Area programs (Johnson Jr. 1974, 21; Pincus 1966, 891). This ultimately ensured that legal services would be a key component of the Community Action Program of the Great Society.

Indeed, the Office of Economic Opportunity modeled its Legal Services Program after the Gray

Area legal aid programs (Magat 1979, 110–11; Johnson Jr. 1974, 21).

Not coincidentally, given his key role in Ford’s legal programs, it was Pincus who initially met with MALDEF representatives in 1967 and helped them through the grant proposal process. Though he left Ford soon after MALDEF got off the ground, he remained an important figure in professional cause-lawyering circles as the head of another new Ford initiative, the

58 Council on Legal Education for Professional Responsibility (CLEPR). Through CLEPR he continued to expand legal clinic programs, cementing his notoriety as the “father” of clinical legal education and the broader law reforms taking place in the wake of the 1960s (Pincus 1980a;

Ferren 1980; Wizner 2002).

To focus on the evolution of Ford’s legal programs, however, belies the revolutionary nature of what Pincus accomplished. Ford is often credited with developing the “cause lawyering” profession in most narratives of the field and for good reason. Prior to Ford’s involvement in the 1950s, there had been little sustained effort to provide legal services to those in need. According to Magat, less than $5 million was being spent on legal aid annually (Magat

1979, 109). In its 1958 annual report alone, Ford reported nearly $1.8 million in new grants for its law and society programs, emphasizing public service training at top law schools with another

$1.2 million in announced awards in 1959 (Ford Foundation 1958, 117–18, 1959, 119–20). In other words, Pincus brought Ford into a largely neglected field and immediately made the foundation an important funding source for the development of legal aid efforts.

Legal aid work had received sporadic attention up until this point, but few concerted efforts to instantiate a right to legal services. Much of the development of local legal aid societies themselves were at the mercy of local charities and the initiative of individuals within the local legal community. In fact, while the New York Legal Aid Society is often credited as the first of its kind when it was established in 1876, its original purpose was not to serve the poor generally, but recent German immigrants as a project of the local German Society whose members wanted a means of protecting their co-ethnics from exploitation (Johnson Jr. 1974, 4; Auerbach 1976,

53). While it evolved within a few years to serve the larger number of poor in the city and inspired similar efforts in other cities, the overall effect was modest. Most developed only in big

59 cities and many operated more as referral services directing would-be clients to lawyers who were mainly employed by firms and volunteering their extra time. It was not until the 1920s that need for legal services started to attract national-level attention from foundations and the

American Bar Association, but this too produced only small gains in the number of legal aid groups. Handler et al. note that between 1920 and 1947, the number of legal aid societies grew from only 40 to 70, hardly enough to meet the demand for legal services (Handler,

Hollingsworth, and Ginsberg 1974).

One hold-up was within the larger legal profession which held snobbish attitudes towards pro-bono work on behalf of the poor. Before the ABA established a standing committee on legal aid in 1920, leaders had been reluctant to embrace efforts to serve the poor. No local bar association had even sponsored a legal aid society until 1909. Most continued to view legal aid societies with disdain. Distinctions between the “worthy” and “unworthy” poor still resonated even among legal aid society supporters. Thus, criminal defense was neglected. Moreover, anything that might potentially earn a private lawyer a sizable contingency fee was also neglected. But there was also a tension within the profession that a dignified lawyer would not stoop to serve an undignified clientele, part and parcel of larger rejections of practices to accept contingency fees rather than serve stable clients (Auerbach 1976, Chapter 2).

The creation of the National Association of Legal Aid Organizations in 1923 (the precursor to the NLADA) did not fundamentally change local indifference to legal aid work. The number of groups may have doubled between 1920 and 1947 as noted above, but local associations remained largely indifferent to developing services for the poor and internal division still plagued the national bar despite the formal accommodations it made available. The biggest spur to action did not occur until the 1950s when the British government’s plans to fund legal aid

60 provoked fears of similar government entry into the legal profession and a loss of autonomy

(Johnson Jr. 1974, 9, 34–35).

Pincus’s work on criminal justice at the end of the 1950s unintentionally placed him— and the Ford Foundation—at the ground floor of debates over fundamental changes to the legal profession. Moreover, his access to Ford’s enormous resources gave him a central role in helping shape and implement those changes.

From Legal Aid to Law Reform

Despite the revolutionary nature of Ford’s support for legal aid from the 1950s through the early 1960s, there was also a sense that the model provided only limited contributions to the fight against poverty. Supplemental legal strategies, namely test-case litigation, would be needed to address the deeper causes of social inequity. Legal aid did provide poor individuals the chance to protect themselves against violations of their rights. But there was also an understanding that the poor faced more systemic violations of their rights that limited opportunities for social mobility and that court access for individual litigants would do little to challenge these problems.

Ford officials, like many other lawyers in and around its growing networks believed more need to be done to challenge the deeper barriers resulting from entrenched poverty, and especially, racism.

The obvious model for pursuing wider law reform strategies, indeed one of the only models of the time, was the NAACP LDF. Along with the ACLU, it represented the primary example of a legal organization committed to precedent-setting litigation at the time (Handler,

Ginsberg, and Snow 1978). For Ford officials, it would have made sense to begin partnering with the organization. And in fact, the organization’s director, Jack Greenberg, reported being

61 contacted by William Pincus asking how Ford might support his work. However, Henry Heald’s continued unwillingness to involve the foundation in civil rights work stalled those discussions.

Ford wound up making a gift to Howard University instead as a compensation measure

(Greenberg 1994, 371–72).6

This did not stifle Ford’s dalliance in law reform, however. Rather than deal directly with the venerable civil rights organization to challenge structural barriers through litigation, Ford’s anti-poverty experiments, the Gray Areas programs, themselves began developing a commitment to law reform. If Ylvisaker saw the Gray Areas programs as an opportunity to help the poor challenge structural barriers through the political empowerment of “maximum feasible participation” and experiments in self-governance, attorneys at the sites believed courts could assist in the process through proactive litigation. At various Gray Areas sites, attorneys like Jean and Edgar Cahn, Edward Sparer, and George Bellow, played pivotal roles in articulating how law might be used as an instrument for reform, seeing a bigger role for themselves than simply legal service providers.

Notably, these figures became important players in the set-up of legal services after the passage of the Economic Opportunity Act of 1964. Through a well-received article about their experiences at the New Haven Gray Areas site (Cahn and Cahn 1964), the Cahns were invited to participate in the War on Poverty Task Force and succeeded in establishing the Legal Services

Program (LSP), making it a core subsidiary component of the law’s newly established

Community Action Program. Jean Cahn went on to serve in an official capacity as an adviser to

Office of Economic Opportunity director, Sargent Shriver, while her husband and George

6 The annual report that year confirms a $600,000 gift was made to Howard University (Ford Foundation 1964). 62 Bellow contributed to discussions about the design of LSP. They staunchly sought to prevent

LSP from operating as simply another social service provider within CAP’s various Community

Action Agencies. They wanted the agencies, which were being modeled after Ford’s Gray Areas programs, to pursue proactive reform agendas (Johnson Jr. 2013, 1: Chapter 5).

The people ultimately hired to direct the Legal Services Program shared their enthusiasm for law reform. As its first director, Clinton Bamberger, noted in a later interview, legal aid models were all too limited for what he hoped the agency could accomplish. “[T]he most they could do was usually settle matters. There was no kind of appellate practice, there was no effort to litigate cases or establish precedents that would solve pervasive problems. It was what is described as a band aid kind of thing” (Bamberger, Jr. and Brown 2002, 19).7

The focus on law reform also proved important for LSP in achieving political buy-in from other players in the legal arena. Plans for the government to fund legal access for the poor proved controversial with various vested interests. The national and various local bar associations, for example, had long maintained an uneasy relationship with legal aid societies which were often filing suit against the clients and associates of prominent members. But local bar groups were also able to hold legal aid societies in check given that they provided the societies with most of their funding. Federal support of legal services, however, threatened new autonomy for poverty lawyers since local bars would no longer control funding flows (Johnson

Jr. 1974, 42). There were also concerns, particularly from trial lawyers, that the LSP would be bad for business and rob their practices of potential clients (Houseman and Perle 2013, 17). But perhaps the biggest concern rested on fears that government support of legal services would

7 See also Stumpf (1968, 711). 63 “socialize” the law and almost certainly interfere with the autonomy of the legal profession.

They worried especially about the professional integrity of lawyers that would be hired to work for the local CAAs and whether they would be able to practice law consistent with the standards of the profession or if the government (and “laymen”) would dictate how they worked with clients. Legal aid society lawyers themselves were particularly bothered by this, a constituency

OEO did not initially anticipate posing many objections. Given that OEO and LSP officials were hoping legal aid societies would be applying to provide services for their local CAAs, the pushback portended major difficulties ahead (Johnson Jr. 1974, 77; Pye 1966, 224).

When Bamberger went to the annual NLADA meeting in 1965 to sell the new legal services program, he reportedly found out just how intense fears were over government intrusion and what they saw as overly grandiose plans at OEO (Johnson Jr. 1974, 76–77). The questions were hostile and speakers raised several questions about the effects of the programs. Was the government going to be funding competitors to the legal aid movement? Were lawyers in the programs going to be at the whim of other bureaucrats running the CAAs or the general public?

With OEO offering child care, health care, job training, and other services on top of legal aid, would lawyers be dragged away from legal issues and into becoming glorified social workers?8

Promising that legal service providers would be granted autonomy from CAA staff offered some reassurance to those worried about protecting the authority and expertise of lawyers. But for those worried that LSP lawyers represented competition with their individual practices Bamberger stressed that his program would serve a much broader goal than that of the

8 For more on tensions, see Pye and Garraty, Jr. (1966). 64 traditional legal aid office. They would emphasize reform and appeals work, therefore not duplicate what contingency attorneys and legal aid attorneys were already doing.

While these assurances ultimately helped Bamberger establish the consent of the

American Bar Association, the on the ground reality proved more complicated and pointed to the challenge of relying on the federal government to support law reform. Both OEO officials and leaders of the local Community Action Agencies were thoroughly unhappy with plans to give

LSP autonomy. In a compromise, LSP leaders agreed that legal programs did not have to be included at CAAs automatically but had to be requested by local CAA administrators

(Hollingsworth 1977, 297; Pye 1966). This proved problematic since, as it turned out, many of the CAA administrators were suspicious of having legal service operations at their program sites.

Administrators did not tend to view legal services as central to their anti-poverty efforts and often found litigation counterproductive to their efforts to develop relationships with local officials—and also contrary to the mission of CAP which was to rely on the participation of the poor themselves rather than expert lawyers (Pye 1966, 226). Likewise, coordinating law reform efforts at CAA sites proved more difficult than promised. On-site legal service offices more often found themselves responding to individual complaints and began providing services resembling traditional legal aid. Under pressure from local publics, they had difficulty formulating more systematic reform efforts and test case strategies (Johnson Jr. 1974, 214;

Sullivan 1971).

With Legal Services Program staff overwhelmed by the amount of legal aid casework and tensions with CAA staff at program sites, Bamberg and his leadership decided to establish independent legal services centers. At first, these involved regional and topic-focused service centers that could operate as clearinghouses of legal expertise, with legal scholars who could

65 provide assistance to local offices so as to pursue larger class actions, develop test case strategies, or provide a backstop to handle appellate cases (Johnson Jr. 2013, 1:116; Lawrence

1990, 32, 46–48). An early model for these independent legal centers came from former MFY director Edward Sparer. Sparer left MFY in 1965 to found the Center on Social Welfare Policy and Law with support from Ford and OEO (Davis 1993, 34).9 As Martha Davis explains, “Sparer envisioned a two-tiered model in which routine services would he provided by neighborhood lawyers and social workers, and strategic litigation would be generated and supervised by specialists working as partners with the community-based offices” (Davis 1993, 34). These were later followed by independent legal services agencies not tied down to a restrictive CAA. Among the more notable examples was the California Rural Legal Assistance program (CRLA) which targeted services to largely Mexican migrant workers through nine different offices in

California’s Central Valley agricultural region.

Establishing independent litigation efforts, however, had the effect of removing CAA officials as a buffer between angry local political officials and the Legal Services Program. As a result, the Legal Services Program found itself a direct target of de-funding and dismantling efforts on behalf of state and local political figures. They found it beyond reason that the federal government was directly financing litigation against their various municipal or state-level agencies, as well as against important local political allies and associates. Mayors like Richard

Daley of Chicago and others, already upset with the Community Action Agencies establishing a competing political organization, likewise wanted to prevent shut down legal services programs over concerns that the group might sue city agencies or key political supporters and took their

9 In fact, it was Sparer’s involvement in the MFY and his use of test case litigation itself that set the tone for test- case strategies at OEO (see Lawrence 1990, 24). 66 complaints straight to the president (Bamberger, Jr. and Brown 2002, 34–35; Lemann 1991,

165–67). Congress similarly fought to scale back and neutralize OEO legal services. Famously,

Oregon Democrat Edith Green initiated several efforts to take grant-making authority away from

OEO and turn it over to state governors. Meanwhile, California Republican Senator George

Murphy began a campaign in 1967 to pass a legislative amendment that would restrict legal service programs from suing government agencies. His efforts represented a direct response to

CRLA for the ongoing threat it posed to state agriculture interests and its successful litigation against fellow Republican Governor Ronald Reagan over cuts to state Medicaid.10 He ultimately failed, but not before generating significant panic within LSP which prevailed after several close votes (Bennett and Reynoso 1972; Johnson Jr. 1999, 22–23).

The biggest threat, as noted by OEO leaders Clinton Bamberger and Earl Johnson Jr., would come from Reagan himself in the wake of his legal defeat. As governor, he had the ability to veto federal funding for CRLA under the terms of the Economic Opportunity Act and made clear in 1968 that he intended to use that authority. The director of OEO, however, also had the ability to override a governor’s veto, which meant Reagan’s threats were ultimately to no avail as long as Sargent Shriver remained at the helm of the agency (Pious 1971, 384). But the tenuousness of CRLA’s existence would become clearer in 1970 when Reagan resumed making threats to defund the organization during the Nixon administration with Donald Rumsfeld at the helm of OEO. Ultimately, the Nixon White House maneuvered to protect CRLA’s funding but the multiple episodes demonstrated the challenge of relying on government support for groups

10 Morris v. Williams 67 Cal.2d 733 (1967) 67 that exist to sue the government (Bamberger, Jr. and Brown 2002, 37–38; Johnson Jr. 1999, 26–

27, 2013, 1:122).

It was fairly clear that OEO would have a difficult time living up to its promise of providing innovative law reform efforts and its Legal Services Program even appeared at risk of being shut down. To fulfill the aspirations of a legal community fixated on the need to pursue major appellate litigation, independent efforts from the voluntary sector would need to be pursued. As a still pivotal player in law, the responsibility would fall to Ford Foundation officials. Moreover, with Heald being forced out as the foundation’s president in 1966, it would have a freer hand to service civil rights agendas without subterfuge. Indeed, with former National

Security Advisor, McGeorge Bundy, a veteran of both the Kennedy and Johnson administrations, taking over as foundation president, its engagement with administrative priorities around civil rights were only likely to deepen.

Moving into Civil Rights Litigation

Ford’s Gray Area programs were absorbed into the new OEO CAP program beginning in

1965, which left the foundation with a diminished portfolio of projects (Marris and Rein 1973,

208–9). But the assumption of federal control over its anti-poverty and legal advocacy programs left Ford officials in a position to continue maintaining the support structure that fed talent and new thinking into the programs. Pincus continued his support of the aforementioned National

Council of Legal Clinics to build cooperation between the American Bar Association and the

Association of American Law Schools in an effort to improve the curriculum and availability of clinical legal programs. He also involved the foundation in efforts to establish several of the LSP backup centers, like Edward Sparer’s Center of Social Welfare and Law at Columbia University

68 (Davis 1993, 34). Likewise, he continued to work on the neglected area of criminal defense through collaboration with the NLADA.11

But the loss of a large grant portfolio to the government’s anti-poverty agency put pressure on Ford Foundation officials to innovate in new areas. Pincus would be looking to do more than support and maintain the already established infrastructure of legal institutions created. By this time, Ford had established itself as a major partner of the government willing to take on demonstration projects that agencies were reluctant to test, and officials believed that they had a responsibility to use their funds to backstop the larger agenda of the administration by providing the kinds of services that government could not.

The obvious new direction for the foundation to take under the circumstances was toward civil rights. By 1965, Johnson had made clear his commitment to the issue. At his commencement address at the University of Michigan in May of 1964 announcing his vision of the Great Society, he presaged a commitment to pursuing racial equality. Enjoining students to take part in “the battle” for equality for every citizen “whatever his belief, or race, or the color of his skin,” he then spent the next two years engaged in this promised conflict. By July of 1964, he shepherded through the landmark Civil Rights Act, and a year later, delivered the Voting Rights

Act of 1965. Smaller foundations like Field and the Stern Family Fund had been supporting civil rights efforts in recent years, in part, because their smaller stature made them less of a target for controversy which gave them more room to take risks (Zunz 2012, 209; Carter 1969; Stern

1966). But having played a major role in the run-up to anti-poverty work, the desire of Ford officials to remain a central partner of the administration would mean now inserting itself into

11 NLADA received another $4.3 from the Ford Foundation according to its 1964 annual report. (Ford Foundation 1964) 69 this potentially fraught area as well. The departure of Heald by early 1966 with Bundy taking his place expanded the possibilities.

In 1965, with the tide clearly turning inside the foundation already, Pincus resumed the conversations he had begun two years earlier with Jack Greenberg and the NAACP LDF. By

1966 they finalized plans establishing the National Office for the Rights of the Indigent (NORI) which Ford then agreed to fund. Again, the primary reason for the creation of NORI was to offer

Ford cover for its support of a civil rights organization. Officials could claim that Ford’s collaboration and support were restricted to anti-poverty efforts. But with Heald gone from the foundation by the time the NAACP LDF started receiving its checks, Greenberg notes NORI simply started “to fade away” (Greenberg 1994, 371–72).

Though neglecting civil rights would have been a liability for the foundation given the direction that the Johnson administration was headed in, not to mention the widespread support for civil rights within its networks of grantees and collaborators, its involvement posed an immediate threat to the organization as well. Criticism and controversy were certain to follow any foundation support for civil rights since Ford remained a target for Southerners especially and conservatives generally. Throughout the 1960s, Congressman Wright Patman, a conservative

Democrat from Texas, emerged as the primary bête noire of the Ford Foundation to assume the role Edward Cox and Carroll Reese played during the 1950s. Patman, driven as much by a populist streak that looked suspiciously at the concentration of wealth as by racial conservatism, began a series of investigations of nonprofits and foundations in 1961 that he continued to pursue through the rest of the decade. Patman’s animus centered on claims that corporations were abusing—if not violating—foundation law to protect their wealth from taxation, giving them an unfair advantage that was killing small business. Initially, this led to more focus on the laws on

70 the books and broad questions about whether they served the public interest (U.S. Congress.

House. Select Committee on Small Business 1962). But Patman’s efforts did manage to instigate an IRS investigation of the philanthropic sector for tax evasion and misuse of funds. And Patman made sure to highlight controversies to aid his calls for a reform of tax law and for more enforcement to catch violators. One such episode came along in 1967 when it was revealed that

Ford had given Congress of Racial Equality (CORE) to register Black voters in Cleveland ahead of a mayoral election. In an historic moment, Carl Stokes won the election, becoming the city’s first African American mayor, but criticism immediately emerged over Ford’s support of voter registration efforts. For Patman, not only did this validate the claim that foundations were robbing the public purse, they were using their money to sway elections. Though Patman, a segregationist, did not invoke the racial dynamics, the undertones in this and other controversies involving grants to decentralize New York Public Schools, the racial undertones were obvious

(Zunz 2012, 202–7 & 222–26). Thus, while the foundation found itself under increasing pressure internally and externally to support civil rights, the push would also generate more negative attention and enhance leverage for opponents.

Mexican American Pressures for Inclusion in Civil Rights

As soon as Ford entered the civil rights sphere, however, officials found themselves under pressure to view problems as extending beyond the Black American public. By the early

1960s, Mexican American activists witnessing the new civil rights regime in development with

Blacks receiving special White House meetings and advisory groups, new agencies like the

EEOC and US Commission on Civil Rights, and others. Activists in the community pointing to

71 their own history of discrimination in the Southwest looked upon this attention with more than a little jealousy and frustration.

Initially, this pressure was directed at the federal government itself, especially at the executive branch, and these efforts had had some modest impact already by 1965. Activists and officials such as Rep. Henry B. Gonzalez, Rep. Ed Roybal, and Sen. Joseph Montoya had effectively pressured the Kennedy administration to include a “Spanish Americans” category in contracting compliance forms of the US government (Graham 2005, 373; Skrentny 2004, 102).

The 1960 presidential election was a high water mark for Mexican American political participation as Viva Kennedy clubs got started throughout the Southwest and they reminded the

Kennedy administration that their efforts helped prove the difference in Texas for his close electoral victory. Concessions like these reflected both a desire to make good on reciprocal commitments and an increasing awareness among White House officials that they would need to devote more attention to issues of poverty and discrimination affecting Mexican American communities.

At the same time, Mexican American activists felt that they were being paid an insufficient level of attention by the White House. The complained that the White House did not make many federal appointments of ¡Viva Kennedy! veterans nor were any contractors penalized for discriminating against Mexican Americans. They also chafed at a perceived unwillingness to address the poverty and discrimination concerns of Mexican Americans generally by the burgeoning mix of public and private institutions that were assisting Blacks. The few gestures of recognition left activists feeling snubbed by white elites who refused to recognize the history of discrimination against Mexican Americans or the ongoing challenges facing their population which they believed were on par with the experiences of Black Americans (See Chapter 6 of

72 Pycior 2010). They increasingly gave vent to their sense of disrespect. The discontent continued to build until boiling over in 1965 under the Johnson administration.

The fact that Mexican American pique would climax under the Johnson administration was surprising under the circumstances. When he assumed the presidency after Kennedy’s assassination in 1963, there were few doubts that he had a broad understanding of the civil rights challenges facing Mexican Americans and did not view civil rights as a problem affecting only

African Americans. Mexican Americans remained a largely invisible population to the majority of Americans outside the Southwest, but as a Texan, Johnson had intimate experience with the

Mexican American public and enjoyed good relations with many of their major organizations. As a freshman in the House, he had even played a notable role during a 1949 controversy in which a cemetery in Corpus Christi refused to provide funerary services for a local Mexican American soldier, Felix Longoria killed in action in World War II. Johnson’s intervention led to Longoria being buried in Arlington National Cemetery to the enduring gratitude of the contemporary

Mexican American public. The controversy over Longoria’s burial had, in fact, played an important role in the development of Mexican American activism, leading to the mobilization of outraged Texas veterans and eventually, to the formation of one of the most important Mexican

American advocacy organizations of the post-war period, the American GI Forum. In addition,

Johnson had been a school teacher working with primarily Mexican American students at a poor schoolhouse in Cotulla, Texas, an experience he often invoked to Mexican American audiences and others as a sign of his commitment to a civil rights agenda. This history gave him strong credibility with and support from Mexican Americans, a fact that he was well aware and proud of (Pycior 2010, Chapter 7; Kaplowitz 2005, Chapter 4).

73 Yet things soured quickly. To be sure, Mexican Americans enjoyed significant access to the White House under Johnson initially and scored some important gains. Under the Great

Society, Mexican Americans received specialized attention with dedicated agency subdivisions working on their behalf. The Office of Economic Opportunity, for example, created several bureaucratic subdivisions specifically targeting Mexican Americans living in urban poverty or working in agriculture. In fact, with money allocated to serve migrant and seasonal workers under the Economic Opportunity Act, the agency established an entire Migrant Opportunities program, and many other programs including Legal Services and CAP had dedicated migrant services components. While not exclusively serving Mexican Americans, the emphasis of these efforts was on Mexican American laborers (U.S. Congress. House. Committee on Education and

Labor 1965, 35 Statement of R. Sargent Shriver). In addition, Mexican American organizations like the League of United Latin American Citizens (LULAC) and the American GI Forum were contracted to administer several job training and other poverty programs of the Great Society.

They also received federal support for conferences on Mexican American issues.

Nonetheless, leaders of these groups remained dissatisfied with the overall level of attention they received. Employment figures for Mexican Americans within federal agencies remained low, and Johnson made few appointments to top positions in various federal agencies or commissions, constituting a major complaint among activists. Their ire was particularly acute over the failure of the newly established Equal Employment Opportunity Commission (EEOC) to hire significant numbers of Mexican Americans or to appoint any Mexican Americans to serve as one of the five commissioners. Moreover, activists, as well as the Mexican American public at large, continued to believe that OEO was ignoring their community overall. Historian Robert

74 Bauman describes how tensions in Los Angeles led Congressman Ed Roybal to issue a warning to OEO leadership:

In October 1965, Congressman Ed Roybal, who represented East Los Angeles, told OEO that his constituents felt they were not getting ‘a square deal’ from OEO and that the administration had a policy of ‘Negroes first.’ He observed that perhaps Mexican Americans would ‘have to riot to get attention.’ Roybal also predicted racial strife in Los Angeles within a year “unless something is done to indicate that the Mexican-American group is getting a good deal.” The message was not lost on OEO Director Sargent Shriver. On the memo informing him of Roybal’s complaints, Shriver wrote, ‘We should be doing much more with Mexican-Americans’ (Bauman 2007, 287). [Emphasis in original.]

Tensions came to a head in March of 1966 at an EEOC regional meeting that its director,

Franklin D. Roosevelt, Jr. had arranged to discuss Mexican American concerns exclusively.

Berated for months at not doing enough to consult with Mexican American leaders about their employment discrimination concerns or to protect Mexican Americans, Roosevelt agreed to host a meeting in Albuquerque to discuss how EEOC could more effectively serve their needs.

However, just after the meeting began, the Mexican American attendees staged a walk-out.

Frustrated by the stonewalling, not only of the EEOC but the Johnson administration more generally, and the fact that only one commissioner showed up to the event, they decided to hold their own meeting nearby to discuss next steps for being taken more seriously. The fact that the leaders of the walk-out included the normally genteel representatives of old guard organizations like LULAC and the American GI Forum, Johnson was reportedly shocked and moved to be more attentive (Kaplowitz 2003, 193). It did not solve their problems, but the increasing militancy exhibited by activists would lead to the nomination of former American GI Forum organizer, Vicente Ximenes, to serve as an EEOC commissioner and the formation of a new

Interagency Committee on Mexican American Affairs to study how government agencies could

75 better serve Mexican Americans. Ximenes would chair this effort as well, which brought together the OEO director and the secretaries of Labor, Agriculture, and Health, Education and

Welfare, to identify the distinct needs of Mexican Americans and formulate policies addressing them (Graham 1990, 226; Kaplowitz 2003; Kells 2015).

Johnson and his administration hardly represented the only targets of Mexican American activism during this period. The same groups of activists had also been pressuring the US

Commission on Civil Rights (USCCR), the independent agency chartered under the 1957 Civil

Rights Act to study matters of race and issue recommendations for how to deal with the major challenges they identify. As early as its 1962 hearings in Phoenix, the Commission began devoting significant time to Mexican American speakers on issues of segregation and discrimination, though attention to Blacks continued to dominate (see U.S. Commission on Civil

Rights 1962). But agitation for more attention began to increase, including on the local state advisory councils of the commission and soon they began holding hearings on Mexican

Americans, taking on research reports, and adding Mexican American members.

Foundations began to feel the pressure as well. This was unsurprising given their quasi- governmental role in planning and implementing the War on Poverty and major supporters of work being done by the US Commission on Civil Rights. Thus if the administration was increasingly aware of its need to treat Mexican Americans as a distinct disadvantaged group needing similar civil rights protections as Blacks, the Ford Foundation realized it too had to do more to recognize activist claims for special consideration. However, for Ford, this was somewhat new territory in the early 1960s. It had actively worked with Puerto Rican communities in New York, but had little experience with Mexican Americans in the Southwest.

In Ford’s absence, the California-based Rosenberg Foundation was the main actor in Mexican

76 American philanthropy.12 Rosenberg sponsored several research efforts in the early and mid-

1960s of the Mexican American population and especially, issues of poverty surrounding

Mexican American migrant labor and the increasing movement of Mexican migrant workers to

American urban centers. Since the 1950s, rural to urban migration had been framed by officials both at Ford and in the federal government as proximate causes of poverty in American cities as well as crime and juvenile delinquency. Indeed, as Paul Ylvisaker would note in a speech in

1963, the greatest challenge facing the country was the challenge of incorporating streams of newcomers into modern urban life. Historically, it had taken generations for new arriving groups to adjust to urban America, but in contemporary times, this rate was “dangerously slow.” It called for a new analysis that views “the metropolis as a continuous system that attracts the newcomer (once the Scots, the Irish, the Jews, the Italians, now the Negroes, the Puerto Ricans, the mountain Whites, the Mexicans, and the American Indians) and assimilates him into all that is up-to-date and sought after in urban culture” (Ylvisaker 1963).

But even if Ylvisaker and others were aware of problems facing Mexican Americans in the Southwest they had not done much to get involved. Mexican American issues were more often treated, by Ford and others, as isolated local problems in places like Los Angeles, San

Antonio, El Paso, or California’s Central Valley. Mexican American issues were not part of a national agenda that were believed to merit special considerations. But that began to change in the early 1960s as Ford increasingly made pro-active commitments to address their needs. The shift occurred both as a result of direct pressures Mexican American activists applied on the foundation, but also because of the increasing emphasis on Mexican American policy by the

12 Diaz (1999) notes that the Rosenberg Foundations played a central role in launching Hispanic philanthropy. A smaller San Francisco-based foundation, Rosenberg targeted grants for Central Valley migrant farmworkers as early as 1947 and was the only consistent grant-maker in that space. See also Nicolau & Santiestevan (1991). 77 Kennedy and Johnson administrations which felt activist pressure more keenly. Increased attention to Mexican American issues on the part of the White House also meant more attention by the broader network of government agencies and commissions, think tanks, academic researchers, and ultimately, foundations involved in War on Poverty projects. Rosenberg and the

Field Foundation were among the first to contribute, but that was because they had already been somewhat engaged in efforts given their location and focus on California social issues. But Ford would be enlisted soon enough as well.

By the time Ford Foundation officials started realizing that they needed to do more work on behalf of Mexican American issues, they had catching up to do. Fortunately, Ruth Chance of the Rosenberg Foundation was able to help with the introductions. In 1963, Chance invited Paul

Ylvisaker to a conference honoring a trustee of the foundation, Charles Elkus, who had recently passed away. The conference was organized around a series of working paper presentations on

Mexican Americans. It featured presentations by some of the most prominent political active

Mexican scholars of the day, notably Notre Dame sociologist Julian Samora and historian

Ernesto Galarza. Ylvisaker managed to establish early connections with the two academics and

Herman Gallegos, another activist and writer who became his entrée to Mexican American philanthropic programs (Chance and Morris 1976, 88–90; Gallegos and Morris 1988, 36–37).

Eventually, Ylvisaker would go on to publish the papers as a book (Samora 1966) and work with the men to found the Southwest Council of La Raza (now the National Council of La

Raza), a peer organization of MALDEF’s initially focused on community development projects.

But in the interim, he hired all three men to serve as foundation consultants. Eager to fund research on Mexican Americans to figure out where to focus foundation attention, he leaned on them for advice. And he began distributing money widely. One of the biggest projects he

78 initiated was a UCLA study on Mexican Americans to be led by researchers Leo Grebler and

Joan Moore.13 He invested $500,000 in the study, which, despite demonstrating a commitment to taking activist concerns seriously, nearly backfired on him. Los Angeles activist groups and

Mexican American academics began a loud public campaign criticizing the foundation for awarding the grant to two non-Mexican Americans. The issue was resolved somewhat satisfactorily by the appointment of a graduate student, Ralph Guzman, as the lead investigator although it continued to attract widespread debate as various reports and the final product were released (Diaz 1999; Acuña 2011, 16–17; MacDonald and Hoffman 2012, 259–62).

Though the appointment of a Mexican American to the study team calmed the reaction, the pushback against Ford did cause reverberations. As with much of Ford’s philanthropy, it was not only intended for internal purposes but as a larger reference work for public and private agencies in its networks, with OEO and the US Commission on Civil Rights receiving preliminary reports.14 For all those involved, it became a cautionary tale.

As Ford and the White House and various other governmental and voluntary sector organizations came under pressure to provide more support to Mexican Americans, lack of legal representation to protect their legal concerns emerged as a point of focus. Not only had legal solutions become an obvious means of addressing problems facing Blacks and the poor for many of these actors, the government itself had begun depending on private litigation as a means of enforcing newly established civil rights. As Robert Lieberman explains, the weak enforcement capabilities of new federal agencies meant private litigation would be necessary for making rights meaningful:

13 The final report appeared as a book. See Grebler, Moore, & Guzman (1970). 14 See Joan Moore (1966). 79 The EEOC could not file lawsuits on its own under Title VII, but the Justice Department could. Despite extensive prodding from the EEOC, however, the Justice Department’s Civil Rights Division filed very few such suits—only ten by the end of 1967—leaving the field open for the LDF, the ACLU, and other groups who could represent private litigants in filing lawsuits in federal court. LDF lawyers were the principal actors in this strategy, filing dozens of Title VII lawsuits in 1965 and 1966 alone, and over time the lawsuits became increasingly important as Title VII enforcement mechanisms (Lieberman 2015, 279).

Of course, by 1966, the Ford Foundation had already stepped in to help fund the NAACP

LDF, enabling it to fulfill this role. With Mexican Americans now considered a group that required civil rights protection, they too would need a similar kind of organization to make those protections meaningful. In the early summer of 1968, the US Commission on Civil Rights issued a report detailing the state of civil rights abuses against Mexican Americans, noting:

Many Mexican Americans have suffered violations of their constitutional rights, and they have not had full or ready access to all of the processes involved in the administration of justice. Often they are denied such access; often it appears that they fail to seek it. Preliminary investigations by staff members of this Commission, and a survey conducted independently by a team from the NAACP Legal Defense and Educational Fund Inc., lead to the belief that denials of civil rights which have been documented are repeated elsewhere, undocumented; many violations have doubtless been suffered in silence, or where they have been protested have not been proved (Rowan 1968, 15).

After detailing the extent of abuses observed during a special investigation, the report author laments the unfortunate fact that there has been no “Mexican American organization with the funds or legal expertise necessary to mount a systematic legal attack on various civil rights disabilities” (23). But she ends the section on a brighter note: the Ford Foundation has just announced the formation of a Mexican American Legal Defense and Education Fund.

80 CHAPTER 3 MEXICAN AMERICAN LEGAL ACTIVISM

The Ford Foundation had clear incentives to support the development of a legal advocacy organization for Mexican Americans. During the 1950s and 1960s, its program officers played an active role in developing the cause lawyering as a professional pursuit as well as supporting an expansion of criminal defense and legal aid work. By the mid-1960s, test-case litigation leaped to the cutting edge of the profession and thus became a priority for Ford’s grant-making.

At the same time, Ford program officers working on juvenile delinquency and poverty had begun to reframe issues of inequality through the lens of civil rights. Although they already made individual access to courts an important component of their anti-poverty work during the beginning of the 1960s, Ford officials and their partners began to see systemic discrimination as a major obstacle to further progress and wanted to challenge it on a larger scale. These developments led to an interest in the NAACP LDF, both as an organization that deserved their support and as a model to replicate in the next logical evolution of their philanthropy. After awarding $1 million to the organization in 1966, they looked to establish similar organizations for groups that, like African Americans, faced significant discriminatory hurdles.

That they chose Mexican Americans for this next venture had much to do with external pressures Mexican American activists had begun leveraging against the foundation, the Johnson administration, and the wider apparatus of government civil rights entities like the United States

Commission on Civil Rights (USCCR) and the Equal Employment Opportunity Commission

(EEOC). When Pete Tijerina and his team of activists from San Antonio approached Ford

81 officials to launch their own civil rights litigation organization, they were more than receptive to the idea because of this pressure to demonstrate a commitment to Mexican American problems.

For their part, the Mexican American activists demanding more attention from these various government actors and foundation officials were looking to existing civil rights organizations as models to use for their own advocacy. Given the NAACP LDF’s prominence, it was ripe for imitation. But such a foray would hardly be new for Mexican Americans who had had a rich history of civil rights litigation themselves. Aspiring middle class Mexican Americans spent much of the first half of the twentieth century aggressively challenging rampant de jure and de facto discrimination in the Southwest on their own and through nascent civic associations that started emerging in the 1920s. Their efforts led to several important legal victories prohibiting jury discrimination, school segregation, and exclusion from public facilities. Despite these successes, however, Mexican Americans never established their own permanent organization expressly for litigation. And by the end of the 1950s, civic groups like the League of United Latin American Citizens (LULAC) which had been active in anti-discrimination litigation were more or less abandoning the courtroom.

Reasons for this decline are many but notable was the improved situation for the middle class members whose gains from earlier activism blunted the occurrence of more overt forms of discrimination, diminishing their interest in confrontation. By the late 1960s, however, the dynamic changed. More committed Mexican American activists had an interest in pushing beyond blatant discrimination to address systemic patterns of racism they saw in arenas like education, employment, and criminal justice. Courts offered an obvious venue through which to tackle these concerns.

82 In the rest of this chapter, I describe the evolution in how Mexican American advocacy groups leveraged courts through the first half of the twentieth century before abandoning confrontational advocacy. I then explore the reasons for this breakdown and trace how ensuing rifts among the leaders of these groups led a breakaway faction of activists on a search for patrons to resurrect litigation efforts. These activists, however, would seek to engage courts through a vastly different paradigm, abandoning the color-blind vision that animated earlier legal claims to a new civil rights paradigm in which activists would now be seeking protections as minorities.

Early Development

Up until the 1920s, the predominant organizing among Mexicans in the United States tended to be rooted in mutual aid societies that maintained deep attachments with the Mexican homeland and its politics, even affiliating with and receiving support from the Mexican government (G. J. Sánchez 1993, 109; Buitron, Jr. 2004, 24). These aid societies (known as mutualistas in Spanish) were an active part of community social life and were active in opposing discrimination against their members, even providing legal aid. But it would not be until the emergence of more self-consciously Mexican American civic groups beginning in the late 1920s that would mark a more aggressive turn against social exclusion and aggressive contestation against discriminatory practices. Their efforts would yield notable legal victories against de jure and de facto segregation widely practiced against Mexican Americans in the Southwest. Indeed, they managed several landmark desegregation victories ahead of the NAACP LDF (though on different legal grounds, as will be seen) which are only now beginning to attract wider scholarly

83 attention.15 16 In fact, the NAACP LDF, which would later play a leading role in MALDEF’s founding, had its first interactions with Mexican American attorneys as early as the 1940s.

That the late 1920s would mark a departure point from mutualistas had to do with the rise of a second generation middle class whose families had fled the turmoil of the later years of

Mexican dictator Porfirio Diaz’s rule and of the Mexican Revolution that followed from 1910 to

1920. These individuals, who did not share the same southward-looking perspective of their parents, found their middle class aspirations all too frequently frustrated by rampant discrimination and were eager to mount a more concerted challenge against the indignities they suffered (Kaplowitz 2005, 19–20; Weeks 1929; G. J. Sánchez 1993, 254–55).

The most important organization they would found during this era was the League of

United Latin American Citizens (LULAC), which was established in 1929 in Corpus Christi,

Texas. It would figure prominently in many of the most well-known cases. However, as a federated civic group with chapters throughout the Southwest, its litigation reflected a larger unstructured approach common to most efforts during this time, starting with local incidents of discrimination that would boil over. Typically, an egregious affront to a local individual or to the

Mexican American public at large would rouse local activists and civic groups. As a first step, they would mobilize and seek a negotiated resolution to the problem. Failing that, they would turn to litigation, though this depended on their ability to tap their networks for contributions and fundraise in order to cover the expense. LULAC was particularly well-suited to this model of

15 Until 1990, historians Guadalupe San Miguel and Gilbert Gonzalez were the primary authors working in this area, focusing especially on school desegregation. Since 2000, scholarship has grown significantly. Not all of this new work has been laudatory. Of particular concern has been the legal basis of this early litigation which sought to challenge discrimination under the claim that Mexican Americans are “white.” (See: Aguirre et al. 2014; Arriola 1995; García 2009; G. G. Gonzalez 1990; Olivas 2006; Powers 2008; Powers and Patton 2008; L. Y. Ramos 2004; Ruiz 2001; Saenz 2004; Strum 2010, 2014, 2015; Valencia 2008) 16 One case, Mendez v. Winchester did receive a commemorative stamp from the US Postal Service in 2007. 84 activation given its federated structure which provided ready networks for mobilizing support, both for direct political intervention (their preference) and legal action (Kaplowitz 2005, 30; San

Miguel 1987, 81). The most sympathetic or promising cases could also count on assistance from state and national leadership councils, an important benefit not only because it meant more resources, but because LULAC counted many of the most well-regarded Mexican American attorneys among its members who might be enlisted to help.17 Waging litigation could still be prohibitively expensive and difficult to pull off, but several major cases nonetheless found their way to the courts and LULAC was often at the forefront of these efforts.

Indeed, the membership of LULAC as well as of the other major association of the time, the American GI Forum founded in Corpus Christi in 1948 for veterans, put tremendous pressure on leaders to be as proactive in the fight against discrimination as possible (Blanton 2014, 88).

Though these groups and their members are often criticized by contemporary scholars and activists as being too assimilationist in their orientation and of being overly conformist,18 they were nothing if not adamant about receiving equal treatment and being accepted as the contributing members of society they felt themselves to be as respectable middle class professionals. They chafed at the indignities of, among other things, having their children sent to separate schools, being forced to use separate bathrooms, or being barred various public and private facilities.

Mexican Americans—and LULAC—had one of their earliest major victories in a school segregation case, Del Rio Independent School District v. Salvatierra (1930), argued in Texas

17 Indeed, attorneys were well represented among the founding group of LULACers, especially Alonso Perales and MC Gonzalez who helped lead several early cases (see Olivas 2012). 18 See Quiroz (2015b) 85 state court.19 Moreover, it typified the general process used by Mexican American activists prior to the 1960s. A frustrated parent from the border town of Del Rio, Jesús Salvatierra, was offended by a planned expansion of the local school facilities that appeared to instantiate segregation already being practiced in the town. He formed a local support group to oppose the ongoing segregation of children in a separate “Mexican school,” and their efforts began attracting public support from the local LULAC council. When the parents finally decided to hire private counsel, LULAC founder MC Gonzalez traveled to Del Rio to assist in the litigation.

After winning their initial trial, Gonazlez and JT Canales, another LULAC founder, served as co- counsel for the parents on an appeal heard in San Antonio (Orozco 2010). The ultimately lost the appeal and were denied rehearing, with the court supporting the justification of district officials that their actions were not discriminatory but the result of language differences requiring separate classrooms (San Miguel 1987, 78–80).

This case was followed by other important efforts, including a more successful suit by parents in Alvarez v. Lemon Grove (1931), brought by a group of parents in a town outside San

Diego. Organizing under the banner of the Comite de Vecinos de Lemon Grove (Lemon Grove

Neighbors Committee), they petitioned the Mexican Consulate for help and sued the school district in San Diego Superior Court (Alvarez 1986). Valencia describes the parents’ victory in the case as the “first successful class action school desegregation court case” (Valencia 2008,

21).

19 Salvatierra had been considered the first successful desegregation case fought by Mexican Americans, but this claim has since been contested. Valencia (2008) argues that Romo v. Laird (1925), an Arizona Superior Court case, should be considered the first “brought forth by Mexican Americans” (14). Donato, et al. (2017), meanwhile, argue that the honor should go to Maestas v. Shone (1914), a case fought in Colorado District Court. 86 Similar cases followed. For instance, residents in San Bernardino organized a successful lawsuit against the city for excluding their children from the public swimming pool in Lopez v.

Seccombe (1944), one of the earliest examples of a federal court ruling against segregation of public facilities and a ruling that appeared to contradict the separate-but-equal standard of Plessy v Ferguson (1896) ten years before Brown (M. T. García 1989, 87–89; Foley 2014, 88; Martínez

1994; Rangel and Alcala 1972).

A few years later, the court would explicitly challenge Plessy in a school desegregation case brought by a Mexican American family in Orange County, California. In fact, the case,

Mendez v. Westminster School District, et al. (1946), attracted the attention of the NAACP, the

ACLU, and the American Jewish Congress, among others since the suit filed by the plaintiffs directly called Plessy’s separate-but-equal standard into question. The three even filed amicus briefs on behalf of the plaintiffs, making strong 14th Amendment claims. Part of the reason for the widespread interest in the case had to do with the fact that Mendez was jumping ahead of the

NAACP LDF tactical calculation that the courts needed softening first by bringing cases in which separate accommodations were unavailable. Here, the plaintiffs did have separate accommodations but they nonetheless argued that separation caused inherent harm (Gross 2007,

381–84; Robinson and Robinson 2006; Behnken 2011, 41; Arriola 1995; Aguirre 2005). Mendez served as the first 14th Amendment challenge to school segregation but Mexican Americans would lead two more victorious cases ahead of Brown on similar equal protection claims, each of which continued to draw support from outside observers, notably the ACLU: Delgado v. Bastrop

Independent School District (1948) in Texas federal court (led by LULAC and the American GI

Forum) and in Gonzales v. Sheely (1950) in Arizona (Powers 2014, 33).

87 Despite these successes and ongoing pressure to confront discrimination from the membership of groups like LULAC, Mexican Americans never established a permanent full-time litigation operation. Throughout the 1930s to the 1950s, LULAC and the American GI Forum would continue to engage the courts on a case-by-case basis as circumstances (and funding constraints) warranted. However, interest in these litigation efforts, particularly from the ACLU, opened up the possibility of a dedicated litigation operation even if it ultimately proved unsuccessful. In 1942, LULAC received an unsolicited donation of $10,000 from University of

Wisconsin law professor, Charles Bunn, after reading Forgotten People: A Study of New

Mexicans (G. I. Sánchez 1940), a book by its then president, prominent University of Texas professor, George I. Sánchez (Blanton 2014, 87). Much of the money, Bunn and Sánchez decided, should go to efforts developing litigation against discrimination given members’ demands and the ongoing intransigence of government officials to respond to LULAC’s complaints (Blanton 2014, 76–80 & 87–90).

With additional assistance from ACLU founder Roger Baldwin, an associate of Bunn’s,

Sánchez would start the short-lived Texas Civil Rights League in 1946. This effort proved short- lived because of the war, however, shutting down only three years later. But in 1952, they tried again to create a new legal organization, the American Council of Spanish-Speaking People

(ACSSP) (Griswold del Castillo 2008, 85). Baldwin and Bunn continued to provide Sánchez legal guidance and used their connections with foundations to continue providing him with financing over its brief five-year existence. Unsurprisingly, given its life-span, the results were mixed, but the organization nonetheless produced significant achievements. Most famously, it supported LULAC lawyers Gus García, John Herrera, and James DeAnda in Hernandez v. Texas

(1954), a jury discrimination case that went all the way to the Supreme Court. In siding with the

88 plaintiffs, the court announced its decision declaring the state’s practice of excluding Mexican

Americans from juries unconstitutional just one week before its ruling in the more famous Brown case (Quiroz 2015a; Olivas 2006).

But the experiences working with Roger Baldwin, the ACLU, and the NAACP was also frustrating, leaving Sánchez suspicious of any future attempts to partner with major philanthropies and other national advocacy groups. Indeed, as MALDEF’s leaders began courting support from Ford and the NAACP LDF fifteen years later, Sánchez bitterly warned them against such entanglements. In part, Sánchez and his associates felt themselves underestimated by Baldwin and ACLU lawyers who often sought to direct strategy and take the lead in litigation which they resented, believing they had only limited knowledge or familiarity with the issues facing Mexican Americans. And despite constantly reminding Baldwin to be sensitive to the fact that Mexican American concerns were substantially different from those of

Blacks, he believed they were being asked too often to stand down and take a back seat so as not to intrude on the NAACP’s territory. For example, in an earlier case from 1948, they Sánchez and the LULAC legal team not to follow through with Delgado v. Bastrop¸ desegregation case, until the NAACP had successfully litigated a similar lawsuit, Sweatt v. Painter. Blanton notes that an angry Sánchez fired off a letter to ACLU staff counsel: “Please remember that there is no authorization whatsoever in law for the segregation of ‘Mexicans,’ and the legality or lack of legality of the laws segregating Negroes is immaterial” (Blanton 2014, 185).

The biggest issue that ultimately ended the relationship between Sánchez and Baldwin, however, was Baldwin’s insistence that Sánchez follow the NAACP model and build his organization into a national, self-supporting firm for the “Spanish speaking.” Sánchez and his associates argued that it would be impossible for the ACSSP to serve as even a national

89 organization for Mexican Americans given internal differences dividing the population. Mexican

American communities throughout the Southwest, they noted, were shaped by historically unique settlement patterns and left the population without a common set of priorities. That

Baldwin thought the ACSSP could somehow add Puerto Ricans and Cubans to its constituency was beyond farce. Sánchez would continue to insist in conversations with Baldwin that given regional variations coloring the Mexican American experience, the ACSSP would never be able to expand beyond a local focus. A national organization modeled after the NAACP simply could not work. And as long as the ACSSP’s focus had to remain local, Sánchez also dismissed the possibility that it might become self-financing. Fundraising efforts would never be able to tap a national Mexican American audience. Baldwin refused to accept these claims and would eventually direct his money elsewhere, leaving Sánchez deeply embittered and skeptical about future collaborations between Mexican Americans and national civil rights activists.

The loss of outside funding also coincided with a more general shift in interest away from litigation by LULAC and the American GI Forum, the larger Mexican American organizations that had also been helping fund the civil rights suits. Legal activism remained largely dormant for 10 years between the late 1950s and late 1960s. Historian Guadalupe San Miguel has noted that after the Brown and Hernandez rulings in 1954, collaboration between Mexican American groups and the Black civil rights establishment effectively ended as well. The lone exception to this was Romero v. Weakley (1955), a school desegregation case ultimately resolved by negotiated settlement rather than court ruling (San Miguel 2005, 224). Further, he notes that while some Mexican Americans continued to pursue cases after 1954, “only one of these, the

Driscoll case—that is, Hernandez v. Driscoll Independent School District (1957)—was argued

90 successfully in court” (San Miguel 2005, 224). Meanwhile, LULAC and the American GI Forum stopped funding cases (San Miguel 1983, 355).

Several reasons account for the declining interest in litigation at the time. On the one hand, legal success appears to have diminished much of the urgency within the Mexican

American public for further litigation. Success brought with it internal optimism, and membership-dependent organizations were under less pressure to fund more litigation. As

Benjamin Márquez writes, “With the victories in court cases such as Bastrop vs Delgado, which struck down the legal segregation of Mexican American children in Texas schools, many

LULAC members felt that their major battles had been won” (Márquez 1991, 210). Outraged at the outright discrimination and segregation they encountered in schools, services, and public facilities, the middle class members—especially of LULAC—demanded confrontation, including through litigation. But upon finding validation in the courts, Márquez notes, members wanted to go back to serving social functions (Márquez 1991, 211). Litigation also began to lose value from a pragmatic angle. Many individual school districts in Texas continued to resist implementing court decisions, discouraging leaders from pursuing litigation to address problems that were sometimes proving to be too intractable for courts (Behnken 2011, 45–46; San Miguel

1992, 708). In some instances too, Mexican American leaders found receptive state officials, particularly in state education agencies, making it easier for leaders of Mexican American organizations to seek their intervention in recalcitrant districts (Behnken 2011, 240, 242–43).

The retreat from litigation also spoke to wider concerns about the use of lawsuits as a strategy among members of the largest organizations, namely LULAC and the American GI

Forum. Both of these groups have long been characterized as middle class in nature, more eager to pursue integration through their commitment to “mainstream” American values, patriotism,

91 and (most conspicuously in the case of the AGIF) military service. As noted above, most members were reluctant to engage in confrontation and also thought it to be contrary to the image they wanted to project. Continued antagonism and conflict with Anglo officials would not help them make the case that they fit in with the mainstream.

However, there were additional complicated and somewhat more complicated racial dynamics at work too. Many saw litigation as too much of a piece with the black civil rights movement and were troubled that Mexican American legal teams LULAC and the GI Forum were underwriting were becoming drawn too much into the orbit of groups like the NAACP LDF and other civil rights organizations. In part, this is because they had a general belief that the problems confronting Mexican Americans were unique and required a different set of tactics to address. In fact, there was a widespread feeling that Mexican American advancement depended on maintaining a clear distinction between their agenda and that of Blacks despite apparent similarities in the discriminatory challenges facing both groups. This need to maintain distinction for tactical reasons rested on what has come to be known as “the whiteness strategy” that characterized the litigation strategies of these early lawsuits. Because Mexican Americans did not fit into the dominant racial binary, the government technically classified them as “white,” and Mexican American activists at the time took advantage of this classificatory designation to challenge the unequal treatment at the hands of southwestern Anglos. They argued that unequal treatment as a “class apart” had no basis in the constitution and that under 14th Amendment equal protection guarantees, discrimination against “whites” because of national origin should be banned. Given Plessy’s separate but equal standards, segregation of racial minorities was presumably still allowed. However, discrimination against a sub-class of whites, the logic went, was unconstitutional. Hence, George Sánchez’s frustration of being constrained by NAACP

92 LDF’s tactics and the demands of Baldwin. The histories of exclusion, discrimination, and segregation operated on different bases and required different solutions.

Most Mexican American activists of the time keenly understood the importance of portraying their discrimination concerns as categorically different from those of Blacks. As

Ariela Gross notes in her discussions of the complicated racial legacy of these post-war Mexican

American discrimination cases, judicial rulings regularly refused being drawn into questions of racial segregation. In the Ninth Circuit court’s 1947 ruling in Mendez, the majority:

declared that ‘we are not tempted by the siren who calls to us’ to confront segregation head on, and instead decided on the narrow grounds that segregation on the basis of ‘Mexican blood’-segregation ‘of children within one of the great races’-was not supported by California law (Gross 2007, 384).

Indeed, as Gross finds, when George Sánchez wrote to congratulate Pete Tijerina on receiving the Ford Foundation grant to establish MALDEF, he also sought to remind Tijerina of this complex distinction and to be careful of being lumped together with the NAACP LDF:

[T]hough we should make common cause with the Negroes from time to time, we should not blend their issues with ours. Don't misunderstand, I was a pioneer among the champions for Negro rights—and I am still on their side. However, while the effects of discrimination against Negro and ‘Mexican’ are essentially the same, the causes, the history, and the remedies differ broadly. Put bluntly, the Negro is mistreated because he is black and was a slave. The bases for mistreatment of the Mexicano are much more varied and very different. Their blanket cases are based on ‘race,’ ours on ‘class apart’ (See the Mendez, Delgado, Driscoll, and Pete Hernandez cases—in all of which I had a hand) (Gross 2007, 386).

Most activists understood that their legal success hinged on being able to establish that

Mexican American discrimination had nothing to do with race. This had the effect of discouraging cooperation with the Black civil rights movement, though there were sharp internal

93 differences among LULAC and American GI Forum leaders over whether that meant they should refrain from publicly supporting the Black civil rights cause. Behnken (2011, 2009) and

Kreneck (2001) especially have detailed the complicated dynamics within the two organizations as members fought vigorously with each other over the question with many conservatives rejecting any kind of association with the civil rights movement, often in the language of racial supremacy. Asserting “whiteness” was not just a legal strategy Mexican American lawyers used in the courtroom for pragmatic purposes, but something many members of these groups did in their daily lives, either out of deeply held personal beliefs in their racial superiority or for cold strategic purposes. Such zero-sum thinking about Mexican American advancement could be seen when GI Forum leader Manuel Avila chastised colleague Ed Idar for an article in the group’s news bulletin where he alluded to the need for Mexican American solidarity with Blacks.

According to Behnken:

Avila told Idar that […] his ideas might convince whites that Mexican Americans stood ‘ready to fight the Negroes battles.’ He was afraid that the bulletin might arrest the progress Mexican Americans had made. ‘Sooner or later we’re going to have to say which side of the fence we’re on, are we white or not [and] if we are white why do we ally with the Negro?’ Avila wrote. ‘Let’s face it, first we have to establish we are ‘white’ then be on the ‘white side’ and then we’ll become ‘Americans’[—]otherwise never.’ Avila had rather simple logic; as whites, Anglos were Mexican Americans’ natural ally, not blacks. … To go to bat for the Negro as a Mexican-American,’ Avila emphasized, ‘is suicide’ (Behnken 2011, 65–66).

But again, other group members were less utilitarian in their logic. In fact, restaurant owner Felix Tijerina (no relation to Pete Tijerina) who served as LULAC national president throughout much of the late 1950s staunchly opposed any kind of association with Blacks and regularly fought attempts by liberals in the group to issue resolutions condemning discrimination, the Texas government’s efforts to subvert Brown, and other civil rights

94 violations. According to biographer Kreneck, Felix Tijerina was not shy in expressing his negative views of Blacks and belief that Mexican American concerns had no relation to the civil rights movement. Interviewed by the Houston Chronicle in 1958, he declared, “Let the Negro

fight his own battles. His problems are not mine. I don’t want to ally with him” (Kreneck 2001,

207). Moreover, he enforced segregation at his restaurants, issuing clear policies for staff instructing them on how to handle situations in which Blacks sought service (Behnken 2011, 62).

There was a strong liberal contingent that fought against conservative voices by constantly attempting to force the organizations to make stronger denunciations against segregation of all forms, Black and Mexican. Yet, litigation remained dormant in the wake of the

Marshall Foundation cutoff and general lack of support from either LULAC or the GI Forum.

Moreover, the general ambivalence even among liberals over developing ties to the Black civil rights movement given how it might complicate the “whiteness strategy” ensured that Mexican

American activism drifted further and further from larger trends in legal advocacy throughout the rest of the 1950s and early 1960s.

It is worth noting that these groups were not only concerned with distinguishing themselves from African Americans. There were intra-ethnic boundaries as well that LULAC, the GI Forum and others tried to police. LULAC, for example, had a long-standing citizenship requirement for membership in the organization, and its members often expressed a negative assessment of recent migrants from Mexico, an attitude they also shared with leaders of the

American GI Forum (Kaplowitz 2007, 2005). To be sure, their criticisms of migrants were informed by deeper animosities of agricultural employers whom they saw as exploiting dire economic circumstances in Mexico to manipulate American labor markets and drive down wages. Nonetheless, the also invoked the same racial imagery and epithets Anglos often used to

95 describe Mexican migrant laborers. For example, the American GI Forum jointly funded a report with the Texas State Federation of Labor called What Price the Wetback in 1954. Written by a top-level leader of the Forum and future MALDEF attorney, Ed Idar, the report highlighted grower abuses of migrant workers and the harm done to unionization efforts, but it also trafficked in racial stereotypes of Mexican migrant laborers. Additionally, both LULAC and the

GI Forum offered tacit support for Operation Wetback, the infamous 1950s Eisenhower administration program to deport large numbers of Mexican laborers, despite expressed concerns that many Mexican American citizens were being swept up in deportations as well (Behnken

2011, 105; Gross 2007, 363; H. A. J. Ramos 1998, 72; Blanton 2009, 317).

By the mid-1960s, however, Mexican American organizational leaders began to downplay the hard distinctions they and their members historically sought to maintain to separate themselves from both Blacks and Mexican American migrant laborers. This development would also lead to a renewed interest in litigation. Several scholars have pointed to the growing embrace of civil rights by the Kennedy and Johnson administrations as pivotal to these changes.

Though the New Frontier and Great Society were to remain, on their face, race-neutral as anti- poverty efforts, racial dimensions were obvious to most observers, and with the passage of the

Civil Rights Act of 1965, undeniably intertwined. In the meantime, federal and state efforts like the US Commission on Civil Rights began to direct government attention to the discrimination and racial inequities that Blacks faced throughout the country. Such proactive responsiveness on the part of various institutions changed the incentives for Mexican American organizational leaders. If they had earlier sought to entrench the “white” label and to emphasize their patriotism and respectability, they became concerned that the government was ignoring the palpable grievances that they and their members still faced as “a class apart.” Earlier court victories

96 against segregation and discrimination continued to go unenforced as public institutions instituted new evasive rules that thwarted legal rulings. Likewise, many of the inequities faced by Blacks continued to plague Mexican American communities. For example, they continued to receive inadequate public services compared to white neighborhoods, had their political influence stymied by poll taxes (at least in Texas where the poll tax was not eliminated until

1966), and suffered from workplace discrimination which prevented them from receiving promotions or finding better jobs.

As noted in the previous chapter, Mexican American leaders began to resent the narrow focus that Blacks received and wanted public officials to give their concerns greater attention.

LULAC and American GI Forum leaders believed that Mexican Americans were being treated as

“second class citizens” and became increasingly vocal (Kaplowitz 2003, 198–99, 2005, 2007).

The shifting policy environment, as Nancy MacLean has argued, altered the way in which

Mexican American activists conceived of their identities and their place as citizens, particularly in the wake of the Civil Rights Act of 1965 (MacLean 2007). These activists argued that

Mexican Americans deserved as much individualized attention as Blacks from the burgeoning anti-poverty and civil rights regimes developing within the federal and state governments. They chafed at being excluded from various new commissions being formed to study and recommend action on policies related to race and poverty, and saw little attention being paid to them by philanthropies which were helping fund new services for Blacks in coordination with the government.

Again, Mexican Americans used a variety of pressure tactics to achieve demands on the

Johnson administration to host conferences and hearings entirely on Mexican American issues, to appoint greater numbers of Mexican Americans to government posts, especially in the newly

97 founded EEOC as well as the USCCR, and within the cabinet itself. These efforts produced fruit as Lyndon Johnson convened an informal committee involving the secretaries of the Department of Agriculture, Health, Education and Welfare, Labor and the director of OEO to investigate how their agencies were responding to the individualized needs of Mexican Americans and what changes needed to be made to accommodate demands. Upon issuing their joint report in 1968,

Johnson made this “Interagency Committee on Mexican American Affairs” a formal assembly to be led by newly appointed EEOC commissioner Vicente Ximenes. The nomination of Ximenes to the EEOC was itself a response to the ongoing demands made by Mexican American activists to have EEOC representation (if not a separate EEOC unit dedicated entirely to Mexican

American employment issues). A top leader of the American GI Forum, not to mention a major figure in the Viva Kennedy and Viva Johnson campaigns, Ximenes had already been posted to lower tier positions in recognition of his party service. The promotion of Ximenes was followed by the appointment of GI Forum founder himself, Dr. Hector P. Garcia, to the USCCR. Garcia had been a decorated medic during World War II and was becoming an increasingly vocal thorn in the side of the various commissions, demanding more attention to the various hardships faced by Mexican Americans in Texas while also denouncing government inaction to address them.

Garcia himself had a complicated history as leader of the GI Forum. He chafed at the conservatism of LULAC and conceived of himself as a progressive activist. He wanted his group to take on a more political role and pushed it beyond its original purposes of serving Mexican

American veterans. At the same time, he and his group also supported the “whiteness” strategy and the effort to keep Mexican American issues separate from those of Blacks and migrant laborers (he and his group did, after all, sponsor the aforementioned polemic against wetbacks in

1954). By the 1960s, he and the Forum had largely given up these distinctions. Garcia became

98 outspoken on the discrimination and poverty confronting Mexican Americans and perceived neglect their issues received from the new civil rights apparatus being constructed. He represented a key voice in efforts to force the White House to host another civil rights conference on issues facing Mexican Americans as it had done for Blacks in 1966, something Johnson resisted before coming up with the compromise of his Interagency Committee. Before his appointment to the US Commission on Civil Rights, he also played an instrumental role in pressuring it to hold an exclusive meeting on Mexican American issues in San Antonio in 1968.

This transition experienced by the old-line Mexican American organizations corresponded as well with a burgeoning Chicano movement in which younger activists and youth had no compunctions about highlighting their “class apart” status, comparing their situation to other minorities. Indeed, they celebrated their otherness, the distinct identity they had as Mexican Americans in an oppressive society that had long mistreated them and their families and co-ethnics. The mainline groups often had a respectful, if cautious, relationship with this increasingly “militant” “brown nationalism” of the younger generation. The younger generation had a hostile view of the assimilation ideal the older groups had long aspired to, and in some ways still did. But the older groups more often than not sought accommodation if sometimes bemoaning the uncompromising extremism of Chicano radicalism. The worldviews remained fundamentally different, but they were both united in efforts to seek greater attention to grievances and inequalities facing Mexican Americans.

Not all from the older generation were as thrilled with this development. Many of those in the liberal camp of LULAC and the GI Forum who, in the 1950s, pushed the organizations into taking more active stances against discrimination and segregation and who defended the civil rights movement nonetheless opposed the new shape advocacy was taking. Their activism

99 had long been animated by a desire for integration, of being able to participate in socio-economic and political life on equal terms with Anglos. They did not eagerly support the particularistic claims being made for targeted services and preferential treatment, which they found to be hypocritical. They were even more repelled by Chicano radicals whose “Brown Power” messages they considered to be another form of racism. Such sentiments were particularly strong in older Mexican American communities like Texas and New Mexico where Mexican Americans had developed parallel social and political institutions and where much of their activism had been shaped by efforts to simply knock down discriminatory barriers to full participation in wider public and political life.

This view was perhaps best embodied in San Antonio Congressman Henry B. Gonzalez, a man who had been a prominent advocate for Mexican American and Black civil rights in the

1950s. Gonzalez had been elected to city council in 1953 and immediately began a desegregation campaign of city buildings. Later elected to the state senate in 1956 (the first Mexican American elected to the Texas legislature that century), he also famously led a filibuster campaign against several bills that aimed at disobeying Brown and banning the NAACP from the state (Behnken

2011, 58–60). These efforts made him a hero among progressive Mexican Americans who supported him in maverick campaigns for governor and US Senate in 1958 and 1961, before helping him win in another special election in 1961 to the US House of Representatives.

Gonzalez entered Congress with high hopes of Mexican American progressives who fervently supported the strong civil rights defender, the first Mexican American to represent Texas in

Washington. And he remained intensely popular, serving in the House for 37 years. But within a few years, a polarizing dynamic between Gonzalez and progressive Mexican American activists

100 emerged. The congressman had no qualms about denouncing Chicano radicals and the liberals he considered their enablers. Those who had fought for his election began to regret their support.

Such distinctions were not always so neat in practice. For example, Vicente Ximenes, the beneficiary of Mexican American demands for their own appointee to the EEOC, likewise supported efforts to bring more specialized services to the community but still demonstrated an ongoing commitment to the assimilationist goals and demonstrations of respectability that was more representative of 1950s activism. After a contentious meeting with activists, Ximenes wrote a memo to LBJ suggesting a defense of his Vietnam policy and Mexican Americans at the same time. “Mexican Americans,” Ximenes wrote, “don’t burn draft cards because we have none to burn—we volunteer” (Gartner and Segura 2000, 121). For Ximenes, the over-representation of

Mexican Americans serving in Vietnam was a sign of their patriotism and commitment to an

American identity, a view that would have been out of step with more radical activists of the era for whom such imbalances would be confirmation of institutional patterns of racism.

There were also challenges of getting middle class Mexican Americans to show interest in the plight of Mexican American migrants. Yet it was the deplorable living and working conditions of migrant laborers in the southwest that initially attracted much government and philanthropic attention to Mexican Americans generally. The glaring inequalities led to multiple government- and foundation-funded studies of migrant workers and how to best serve this population. Study commissions and public agencies held hearings and issued reports on the various public service needs of migrant workers including education, housing, public health, and employer abuse. It was more than coincidence that the first legal services program largely recognized as serving a Mexican American clientele was the California Rural Legal Assistance, the OEO-funded state-wide legal aid practice intended for migrant workers. In other words, the

101 very same “wetbacks” Mexican American advocacy groups often denounced in the 1950s were being used as an important impetus for Mexican Americans to receive more specialized attention as a disadvantaged minority community. But despite technically sharing the same ethnicity as the middle class members of groups like LULAC, they were often considered a different population altogether.

When the United States Commission on Civil Rights decided to hold hearings on migrant labor at a May 1967 meeting of the Indiana State Advisory Committee, for example, staff had a difficult time finding participation from these mainline groups. Commission staff emphasized in their planning agenda the need—and difficulty of obtaining—LULAC’s support for the meeting:

It is considered equally important that the problems of migrants be identified with the LULAC national purpose and to relate the support of its president to the local councils which have not been overly enthusiastic about this open meeting but who will be instrumental in meaningful follow up to the open meeting (McKnight and Binkley 1967).

But while the Commission staffers reported having buy-in from then-president Alfred

Hernandez on this need, he confessed to Taylor that LULAC’s treasury refused to fund

Hernandez’s travel from Houston to Indiana and therefore needed approval to provide him with the flight and per diem to attend the hearing.

Nonetheless, mainstream organizations were, by and large, abandoning the conservatism of previous decades, increasingly advancing Mexican American concerns through a civil rights lens.20 Their leaders openly compared the situation of Mexican Americans to that of African

Americans and began to seek similar remedies. Most notably, they moved away from the

20 Though note that it was still important to many like George Sánchez and Hector P. Garcia to remain identified as white and continued to advocate for ongoing classification as “white” on government surveys and the Census (Behnken 2011, 189). 102 “whiteness strategy” and pursued recognition as an “identifiable ethnic minority group” according to Guadalupe San Miguel, since national origin differences did not as easily lend themselves to equal protection claims (San Miguel 2005, 225; Behnken 2011, 190). Such reversals by the older mainline organizations on questions of identity also coincided with growing support for cultural and linguistic preservation, particularly among academics and youth. Large and increasingly radical segments of the younger generation rejected the assimilationist ideals of the older generation and groups like LULAC. They embraced Spanish and Mexican culture and asserted a distinct identity for themselves, denouncing a racially oppressive society and its hegemonic culture.

San Miguel traces the origins of this growing embrace of racial difference to academics then researching Mexican American educational achievement, and specifically, to a study released in 1966 by the National Education Association that called for bilingual and bicultural education (San Miguel 2004, 12). Justification for bilingual education rested on arguments that current integration-focused school curriculum produced emotional harms on Mexican American students by making them ashamed of their family heritage, and that this in turn negatively impacted their school performance. Lower levels of academic achievement demonstrated by

Mexican American students at the time, especially their high dropout rates, could be traced to the

“subtractive” rather than “additive” ways in which schools addressed their linguistic and cultural backgrounds. In order to reverse the academic trends, advocates of bilingual and bicultural education argued that schools needed to pay more attention to cultural and language maintenance that enhanced students’ sense of pride. Their claims quickly took off and found immediate reception among politicians in Congress who passed the Bilingual Education Act in 1968.

103 Outside of these policy debates, many Mexican American youth simultaneously began to express a strong Mexican cultural identity, taking cues from the nascent Black Power movement.

The more radical, like the Brown Berets, even adopted the militaristic image of the Black

Panthers and Latin American revolutionaries by wearing fatigues and boots. Such growing ethnic nationalism which fed the broader Chicano Movement would buffet the particularistic shift among old-line Mexican American organizations and their leaders. Even though there would be tensions between leaders of the older generation and the younger Chicano activists, they would both generally present the Mexican American public through similar frames, highlighting Anglo oppression that required more than anti-discrimination policies to address.

It is worth noting that some of the Chicano movement too was enabled by state efforts in the War on Poverty and philanthropic partners of the Johnson administration. They created their own organizational venues and social spaces for recruiting other youth to their causes. Texas radical organizer José Angel Gutierrez, for example, founded the activist Mexican American

Youth Organization initially as a barrio outreach group to provide job training to low-income youth, receiving both OEO and Ford Foundation funding for these purposes. Gutierrez (who would controversially be on the MALDEF payroll as an organizer) used these funds to successfully underwrite his larger aspirations of mobilizing youth for his movement. He could hire his associates to help organize for activism (although MAYO activists were already leveraging their VISTA posts for the same purposes) and provide sub-grants to potential organizational allies who he could incorporate into MAYO’s ranks. (Clayson 2010, 109;

Márquez 2014, 100; Montejano 2010, 61–62, 66, 96, 105, 108; Rodriguez 2015, 54–55, 74;

104 Sepúlveda 2003, 72).21 In Los Angeles, a similar story would develop whereby War on Poverty organizations like the Young Citizens (later Chicanos) for Community Action (YCCA) would give rise to the Brown Berets through community coffeehouses intended as a gathering place for youth that became forums for radical politics (Rodriguez 2015, 64; Gómez-Quiñones and

Vásquez 2014, 128–30; Moreno 2014, 184; Buitron, Jr. 2004, 69–70). Many of these efforts by younger radicals to take advantage of the War on Poverty, not to mention the language of

Chicano radicalism itself, were inspired by the example of Rodolfo “Corky” Gonzalez in

Colorado. Gonzalez had used his position as the director of OEO’s Neighborhood Youth Corps in Denver and as a member of the city’s War on Poverty board to recruit and build a radical movement there beginning in 1966 (Rodriguez 2015, 57–58). In other words, they managed to infiltrate institutions from the War on Poverty to access government funds for their own ends. It was a somewhat ironic situation given the significant hostility to government contained in their cultural nationalism. Their emergence and flourishing had been made possible by aid from the government they resented.

Nonetheless, the new Chicano radicals and their sympathizers among an increasingly combative older generation united in expressing grievances over the neglect and mistreatment of

Mexican Americans, demanding that the emergent federal anti-poverty and civil rights regimes devote more attention to the community. They may not have had the same vision of where the

Mexican American community needed to go, but they both shared a belief that civil rights and anti-poverty programs needed to look beyond problems within the African American community and give the Mexican American Southwest its due.

21 Gutierrez would later mobilize his MAYO network to start an independent third party, the La Raza Unida Party, which ran in local and statewide races until the 1970s disrupting the state Democratic Party (see Márquez 2014). 105 Factional Beginnings

It was within this context of Mexican American factional transitions and conflicts that

MALDEF emerged in 1968, helping both explain the precipitating factors behind its formation and foreshadowing the immediate difficulties the group would face in trying to represent “the interests” of the Mexican American public. The narrative of MALDEF’s founding typically begins with the story of local San Antonio attorney Pete Tijerina losing a criminal case as the defense lawyer for a Mexican American woman. His frustration at the lack of any Mexican

American jurors to hear the case, he recounted, was the precipitating factor behind his decision in late 1966 to write Jack Greenberg, director of the NAACP LDF, to ask about the possibility of providing civil rights litigation. Greenberg responded favorably to the request and invited

Tijerina and his associates out to the annual NAACP LDF convention in Chicago set for early

1967. Tijerina had to send associates of his in his place, but they were able to convince

Greenberg to put the group in touch with William Pincus at the Ford Foundation. Ford had just given the NAACP LDF a large grant and was looking to expand civil rights litigation work.

Moreover, the NAACP LDF had also begun taking steps to fund Mexican American services and advocacy in the wake of ongoing demands by activists. Although Greenberg initially suggested to Tijerina and associates that the NAACP LDF could expand its presence in the Southwest, they inveighed upon him that an organization for Mexican Americans by Mexican Americans was a necessity given the uniqueness of their issues.

There are many reasons to doubt the simplicity of this story and to see MALDEF’s emergence as part of a longer narrative, the result of broader forces in national and Mexican

American politics than through the singular actions of Tijerina alone. In many ways, a concerted

106 return to courts was likely to occur with or without Tijerina’s actions. For one, the NAACP LDF already had a “southwest” office in Los Angeles specifically to address Mexican American needs there. In other words, pressure was growing for a Mexican American civil rights firm independent of actions taken by Tijerina to start a firm by the same set of sponsors, i.e., the

NAACP LDF and the Ford Foundation. For another, at least one associate of Tijerina’s,

Commissioner Albert Peña of San Antonio’s Bexar County, claimed in an interview that it was he, not Tijerina, who had the initial idea to approach Greenberg for support to establish

MALDEF. Tijerina, he argued, more or less served as the point person of a larger contingent of local activists who all shared the idea (Peña and Gutiérrez 1996). Perhaps most significantly, the story understates Tijerina’s activist history in Mexican American politics and as a notable figure in ongoing evolution of LULAC’s liberal wing over the previous decade, lending credence to

Peña’s suggestion that MALDEF owed its existence at the very least to others in the Mexican

American political scene at the time, if not to broader forces unleashed by structural developments of the community’s different political factions. Without Tijerina, it is likely one of his other associates in the San Antonio would have undertaken the effort even if Peña’s specific recounting of the facts are inaccurate. It was almost certainly a direction that Tijerina’s peers in the progressive wings of LULAC would have been headed in regardless.

None of this is to diminish the real contributions that Tijerina did in fact make. By all accounts, he spearheaded efforts to get the group formed, often at his own expense. Pincus warned Tijerina, for example, that they could not give him a grant if there were any competing proposals were submitted and thus that he needed to assure Pincus and Ford directors that he had reliable support from other Mexican American lawyers throughout the Southwest (Garza 2000;

Tijerina 1998). This meant that Tijerina drove to all the Southwestern states to collect support,

107 and according to Los Angeles radical Bert Corona of the Mexican American Political

Association (MAPA) from starting his own firm (Rivas-Rodriguez 2015, 81). Though not himself a lawyer, Corona, who had already expended significant effort over the previous two years shaming the Ford Foundation over its hiring of white researchers at UCLA for the Mexican

American study (to noticeable effect), had the connections to local lawyers and represented a plausible competitor, so this was no small task imposed on Tijerina. For this reason, the board of

MALDEF appointed him executive director, noting in their resolution that he had “transacted all business matters, recruited the membership [of the board], visited with Mexican American

Lawyers from New Mexico, Colorado, Arizona and California, at his own expense, and has generally been the chief administrator of this program” (“Resolution Number 2: MALDEF Board

Meeting Minutes - February 16, 1968” 1968).

But at the same time, the direction Mexican American advocacy had been headed in the

1960s, not to mention the vulnerable position Ford leaders found themselves in around the same time, ensured that a MALDEF-type group was likely to emerge at this time. Indeed, Tijerina was no sudden figure to emerge on the Mexican American political scene in 1966 after losing a criminal defense case. Rather, he had been a key figure for over a decade within the liberal faction of Mexican American activists who led the legal fight against segregation of Mexican

Americans in the 1950s and fought conservative voices in LULAC over their refusal to voice support for the Black civil rights movement. At the time of the Pete Hernandez trial in 1954, for example, he was president of the San Antonio LULAC chapter and importantly bailed out the

Hernandez legal team when they ran out of cash with chapter funds, doing so unilaterally without waiting for member approval, a risky move (García 2009, 118). Later in the decade, he battled

Felix Tijerina (no relation) the conservative restaurateur from Houston in several elections over

108 the governorship of Texas LULAC chapters and for the national presidency (the latter unsuccessfully). So too, he regularly led efforts to pass resolutions supporting the civil rights movement and condemning the Texas legislature for its efforts to circumvent Brown, deliberately attempting to push LULAC to a more liberal position while provoking the conservative faction, which tacitly supported segregation (Behnken 2011; Kreneck 2001, 165,

209).

As the conservatives began to lose influence over LULAC in the early 1960s (and

Mexican American activism more generally), Pete Tijerina again became a visible partisan at the center of new fissures which soon divided the triumphant liberal faction. Many within the old liberal faction (notably, Congressman Henry B. Garcia) based their strong opposition to segregation of both Blacks and Mexican Americans on a color-blind ideal where both groups would be seen as full and equal members of American society. They also believed that an embrace of “mainstream values” offered Mexican Americans and Blacks the most viable way towards that ideal. They opposed policies that provided unique benefits to racial or ethnic minorities believing such policies would undermine efforts for minorities to be seen as full

Americans and were themselves a form of discrimination. Tijerina and most other liberals, however, had doubts about that this kind of respectability politics could deliver on its implicit promises of full assimilation into American society. They were also dismissive of the argument that particularistic policies were somehow racist and in fact saw such policy interventions as necessary for Mexican Americans and Blacks to overcome the disadvantages that generations of unequal schooling and socio-economic exclusion had generated. Those at the most extreme end of the liberal wing even accused advocates of respectability politics as being “sellouts” abandoning the large number of Mexican Americans who were precluded from playing the

109 respectability game thanks to their socio-economic status, a legacy of a long history of discriminatory and repressive treatment. Moreover, they believed that agitated confrontation with

Anglos and Anglo institutions—a rejection of behaving “respectably”—was essential for getting their demands met and making Mexican American advancement possible. Because of these views, many in this faction had an abiding affinity for the budding youth political activism of the mid-1960s and for the Chicano movement even if they never fully adopted the cultural nationalism or outright rejection of “gringo” society.

As the 1960s wore on and this liberal camp made increasing efforts to convince the government and foundations that they deserved to be seen in a similar light as Blacks, a return to courts would seem inevitable. They had already successfully lobbied for positions on major civil rights commissions and individualized attention from the White House, not to mention successfully lobbied for support of the Bilingual Education Act of 1967. The promise of a civil rights litigation firm like MALDEF—to utilize courts to defend and expand the rights available to Mexican Americans and pursue greater attention from the state for individualized programs and services—was consistent with the new types of demands the liberal activists were making and their conception of what Mexican Americans needed. Moreover, it aligned with their claims that Mexican Americans civil rights challenges required parallel institutions that served the civil rights concerns of Blacks.

Tijerina’s deep involvement with this activist wing suggests he was as likely as anyone to pursue an organization on par with the NAACP LDF and indeed, many of them were involved as co-founding board members. The initial board reads as a who’s who of local San Antonio liberals with whom Tijerina had long been aligned. Already mentioned was Albert Peña, the

Bexar County Commissioner who later claimed to have come up with the idea of forming

110 MALDEF. At this time, Peña was already well known as a radical and mentor to the growing

Chicano movement in Texas. In 1960, he had founded the Political Association of Spanish

Speaking Organizations (PASSO), an unapologetically liberal organization that was intended to serve as a direct counterweight to LULAC and became also deeply involved in electoral politics, often as a critic of the state’s Democratic Party mobilizing outside pressure against it by siphoning away liberal voters when most other liberal Mexican American activists still had hopes of reforming it internally to diminish the influence of Anglo conservatives (Márquez

2014). In addition, the founding committee included close Peña ally, State Senator Joe Bernal, who likewise had another noted liberal and ally of both Peña and Tijerina who likewise had become something of a mentor to young Chicano activists. The final local of San Antonio group was Father Henry Casso, who had been an active detractor of the Civil Rights Commission and parlayed a position on its Texas State Advisory Committee to successfully elevate his attacks and pressure the Commission into holding hearings exclusively on Mexican American issues. Like the others, he too had been a supporter of growing radical youth movement and achieved some level of notoriety for authoring the Del Rio Manifesto protesting the closure of a VISTA program in Del Rio.

Even though their viewpoint was coming to represent the mainstream position of

Mexican American activism, however, it was clear that they represented just one view in the community. They would certainly lack the support of the new “conservatives” many of whom, like Henry B. Gonzalez, might well have been considered liberal champions but who remained dubious of antagonistic politics and group-specific demands that went beyond simple anti- discrimination claims. In fact, as MALDEF leaders soon found out, they not only lacked support but had created significant enemies from within this crowd. At the other end, their alliance with

111 Chicanos would still leave them open to challenges from the left. Chicanos may not have had qualms with legal advocacy and rights-claiming as conservatives did, but they would not necessarily share the same priorities as their older liberal mentors or the compromises those mentors would be asked to make by their funders. The next chapter takes up these tensions that would soon follow MALDEF’s formation.

112 CHAPTER 4 THE FOUNDING & FIRST TWO YEARS

A converging set of interests would bring Ford Foundation officials together with Pete

Tijerina’s group of San Antonio activists to found MALDEF in the summer of 1968. Prior to the opening, the parties spent over a year in discussions and planning as Tijerina laid the groundwork for establishing a new organization with significant assistance from Jack Greenberg president of the NAACP LDF, and his staff. Ford’s board of trustees approved the MALDEF grant in April of 1968, and by July, Tijerina opened the San Antonio-based headquarters. A month later, a Los Angeles branch office would also open.

But despite their mutual interest in founding a Mexican American legal advocacy group, the two principals—Ford Foundation officials and Tijerina—had differing motivations and therefore, expectations, for MALDEF. This would represent just one of the many complications of the effort going forward as MALDEF tried to establish itself. As would also become clear, a third set of principals would also try to lay claim to MALDEF’s agendas: Mexican Americans themselves. Combined with the inexperience of the initial leadership, and Tijerina in particular,

MALDEF would face many difficulties and existential crises in its formative years. Apart from whatever concerns that MALDEF was heading in a different direction than what Ford officials intended, crises brought about by mismanagement and growing criticism from various Mexican

American factions also began to reflect back on the foundation’s own reputation. Vulnerable to criticism that its money was being poorly spent, Ford officials determined that a major evaluation and re-organization would be necessary to right the ship. This would lead to an

113 ultimatum announced months before MALDEF’s two-year anniversary in which officials urged the board to fire Tijerina, relocate the headquarters to the East Coast, and bring more “non-

Mexican Americans” (“preferably Anglos”) onto the board.

This chapter describes the lead-up to the formation of MALDEF, the pressures and expectations facing Ford officials with the launch, and the immediate frustrations that MALDEF leaders confronted as they tried to conform to the expectations of professionalized legal advocacy but found themselves instead trapped in a quagmire of controversy. It ends with an account of the confrontation between Ford program officers and the MALDEF board of directors at their annual meeting in the spring of 1970.

Shepherding a Proposal

MALDEF’s genesis dates back to late 1966 when Jack Greenberg, the director-counsel of the NAACP LDF, decided to circulate invitations to the top leaders of LULAC and other

Mexican American organizations to his organization’s annual conference (Greenberg 1967;

Rivas-Rodriguez 2015, 76). As Greenberg later noted, the NAACP LDF was receiving a growing number of discrimination complaints from Mexican Americans at the time, as well as calls for assistance from Mexican American lawyers taking on discrimination cases without prior experience. To address the situation, he was looking to develop relationships with Mexican

American activists in an effort to expand the number of Mexican American lawyers practicing civil rights law. To meet some of this demand, the Los Angeles regional office of the NAACP

LDF had already hired a young Mexican American lawyer, Richard Alatorre, who would later go on to become a prominent city council member and state legislator (U.S. Commission on Civil

Rights 1969, 656). But Greenberg was convinced that he would need to hire more Mexican

114 American attorneys to deal with the ongoing influx of Mexican American discrimination cases or help Mexican Americans develop their own complementary legal organizations (Greenberg

1967, 1994; Greenberg and Mosnier 2011).

One of the recipients of Greenberg’s invitations was Pete Tijerina, then the Texas civil rights chairman for LULAC (Tijerina 1998). A lawyer himself and a long time veteran of the progressive wing within LULAC’s internal political factions, Tijerina was more than favorably inclined to the invitation. Throughout the 1950s and 1960s, Tijerina played a prominent role within LULAC’s most progressive wings during internal debates over affiliating with the Black civil rights movement. In the 1950s, he and the progressives battled LULAC conservatives who insisted on presenting Mexican American concerns about discrimination as entirely separate from those of blacks (Kreneck 2001, 209; Behnken 2011, 41 & 46).22 With this debate largely won by the progressives at the beginning of the 1960s, Tijerina again found himself among the more progressive LULAC voices in a new split among the old progressive coalition. While a large portion of the old progressive coalition staunchly supported civil rights and believed that

Mexican Americans and Blacks were natural partners in the civil rights movement and its efforts to stamp out racism and discrimination, their commitments were to a “color-blind” politics.

Tijerina and the new progressive wing, meanwhile, believed not only that Mexican Americans and Blacks should be partners in fighting discrimination, but that LULAC should demand proactive government policies offering redress for the racism Mexican Americans continued to confront. Many of them looked upon the new civil rights policy regimes being established to

22 If not motivated by outright racist beliefs themselves, at the very least, LULAC conservatives believed that aligning with blacks would only increase opposition to their own hopes of integration. 115 assist Blacks in overcoming legacies of discrimination and believed Mexican Americans deserved to be included as well.

The new internal split within LULAC, in other words, was between those who wanted to stick with pursuing “color-blind” anti-discrimination policies, and those who also favored particularistic agendas. As a member of the latter camp, Tijerina had been a participant in efforts to pressure the Johnson administration, the US Commission on Civil Rights, and their foundation partners to devote more resources to Mexican Americans.23 Tijerina would also later claim that before he even received Greenberg’s invitation, he was already holding discussions with associates about the possibility of establishing a legal advocacy organization along the lines of the NAACP LDF. Needless to say, he eagerly jumped at the offer, getting Greenberg to fly an associate, Matt Garcia, to the conference (Tijerina was unavailable to attend himself) (Tijerina

1998; Rivas-Rodriguez 2015, 76).24

Over the following months, Tijerina and Greenberg engaged in more conversations, and while they discussed the possibility of the NAACP LDF expanding its services, Tijerina insisted that any legal organization defending the civil rights of Mexican Americans would have to be led by Mexican Americans. Without Mexican Americans at the helm, organizational leadership would lack the experiences, language, and cultural competence to effectively represent the

23 Many of the Texas figures he recruited for the board, including Father Henry Casso, Albert Peña, and Albert Armendariz, had been active in these efforts as well and frequently testified before hearings by the Texas Advisory Committee of the US Commission on Civil Rights, the Commission, and even the 1967 El Paso hearing of the President’s Interagency Committee on Mexican American Affairs, a hearing that was itself evidence of the impact their lobbying was having. Casso was even named to the Texas Advisory Committee as a result of pressures he and other Mexican Americans had generated. 24 It is perhaps worth noting that while Tijerina is the recognized founder of MALDEF, Albert Peña, then a Bexar County commissioner and progressive associate of Tijerina’s, contested the claim late in his life and believed that he deserved credit. He argued it was he who initiated the contact with Greenberg because he wanted assistance with a Title VII case and that Tijerina usurped the lead role during a meeting with Greenberg. See Gutiérrez (2017) and Peña & Gutiérrez (1996). 116 concerns of “the community.” The issues facing Mexican Americans were simply too unique to be handled by non-Mexican Americans (Tijerina 1998). Greenberg did not object to Tijerina’s arguments and offered to facilitate a meeting with the Ford Foundation to look into the possibility of funding a new organization.

Greenberg had only recently secured grant money from the Ford Foundation to support the “Inc Fund” and knew that William Pincus, the program officer he worked closely with, shared an interest in replicating the NAACP LDF’s model to defend the rights of populations sharing a legacy of discrimination comparable to that of Black Americans. The decision to help underwrite the work of the NAACP LDF was just the first step toward a new strategy of addressing poverty through broad class action civil rights litigation (McKay 1977). He was able to quickly secure a meeting with Pincus for March of 1967 to discuss the possibility of spearheading a new organization.

Greenberg spared no expense for Tijerina’s efforts. He provided $500 to help cover the cost of flights to New York for Tijerina and two associates for their meeting with Pincus (Rivas-

Rodriguez 2015, 77). Moreover, when Pincus indicated his interest but told the men he would need a formal proposal, Greenberg reportedly stepped out of the meeting for a few minutes and returned to report that he called the Field Foundation and secured a $6,000 planning grant

(Greenberg 1994, 487; Rivas-Rodriguez 2015, 78). Greenberg’s support continued with the drafting of the grant proposal itself. Though Tijerina initially assumed such responsibilities would fall to someone in his circle given his familiarity with the Mexican American public,

Greenberg had the NAACP LDF largely take over the process. Under the auspices of its new subsidiary office, the National Office for the Rights of the Indigent (NORI) funded by the recent

117 Ford grant,25 Greenberg hired a trusted consultant to write the proposal, Michael Finkelstein

(Greenberg 1994, 487; NAACP Legal Defense & Educational Fund, Inc. 1967; Tijerina 1998).

Given the relative inexperience of Tijerina and his Texas associates with the formalities of dealing with national foundations, it made sense for Greenberg and his team to take charge and shepherd the MALDEF proposal through despite their limited familiarity with Mexican

Americans. Moreover, they had a better sense of operating a standalone legal advocacy firm than

Tijerina and his associates, who despite some experience waging lawsuits over discriminatory practices had done so on an infrequent basis. They would not be familiar with the professional norms that both Ford and the NAACP LDF had played central roles in cultivating. In fact, as

Greenberg would later point out when he first started exploring how to respond to the growing number of Mexican American cases, he commissioned a survey of Mexican American attorneys which found that “There was no Mexican-American lawyer who had a full set of the Federal

Reporter in his office. So, without that, you really couldn’t handle a case in federal court”

(Greenberg and Mosnier 2011, 19).

The combination of Greenberg’s early coordination of fundraising and proposal writing on Tijerina’s behalf, not to mention his frank assessment of the capacities of Mexican American lawyers, indicates the extent of the active—if not paternalistic—role he felt he needed to play throughout the 15-month lead-up to MALDEF’s grand opening. Between the March 1967 meeting with Pincus to MALDEF’s official opening in August of 1968, he continued to dedicate time and resources to preparations for MALDEF’s launch, ensuring that it would be able to

25 The stated purpose of NORI was to handle work explicitly related to poverty. However, Greenberg would later claim that its actual purpose was to provide political cover to the Ford Foundation. Officials there wanted to avoid any potential controversy over the appearance that Ford money had gone to civil rights activities, so the NAACP LDF established NORI as a subsidiary program from which to continue poverty-related litigation with Ford support (Greenberg 1994, 371–72, 434). 118 operate as a reliable partner for the NAACP LDF. He and NAACP LDF staff assisted Tijerina with a number of community information forums at churches, LULAC chapters and elsewhere to explain civil rights litigation and the work that MALDEF would be doing (San Antonio Express and News 1967; UPI 1967). In addition, he organized retreats to train MALDEF board members and affiliated Mexican American attorneys on litigation strategies and federal court procedure.

Greenberg would later reflect that these trainings in Banderas, Texas had a long impression on his staff who would fondly recall the “era of Bandera” when they enjoyed regular exposure to

Mexican American culture and cuisine (Gallion 2004; Greenberg 1994, 488).

The grant proposal submitted to Ford clearly envisioned that this close relationship with

MALDEF leadership would continue. It noted that the NAACP LDF was “prepared to make its expertise generously available to the Mexican-American Fund, to assist the Mexican-American

Fund in a program of conferences (perhaps holding joint conferences), and to assist in the preparation and use of educational materials” (NAACP Legal Defense & Educational Fund, Inc.

1967, 22). Moreover, it specified sharing litigation responsibilities, especially on poverty cases relevant to both NORI and MALDEF:

Some Fund [MALDEF] cases will involve problems of poverty. In such cases, NORI assistance may be available in connection with appeals. The work of the two groups will thus be to a certain extent complementary. The Fund will handle cases ‘on the line’, while NORI will act on an appellate and review level (NAACP Legal Defense & Educational Fund, Inc. 1967, 22).

Greenberg has portrayed his efforts to assist MALDEF and other legal defense organizations as a product of commitments he developed during his upbringing through the example of his father (see Greenberg 1994, 48–49). But he clearly had more immediate motivations to invest so much effort in launching MALDEF and providing ongoing support. As

119 mentioned earlier, there were pressures related to a growing number of Mexican American discrimination cases with individuals and lawyers looking to the NAACP LDF for help. He needed some way to address this problem. Additionally, like Ford Foundation officials, he found himself and his organization under pressure to expand the use of impact litigation, to broaden the agenda beyond segregation issues and basic civil rights. With the War on Poverty underway and the passage of the Civil Rights Act of 1965, he later noted, the NAACP LDF faced “the realization that merely prohibiting discrimination would not end the legacy of slavery and segregation that had divided the country into two societies,” one white and rich, the other Black and poor. But to do something about the situation required an expanded network. “Combating poverty, however, was not something that could be done successfully for blacks, or indeed any single group, alone,” Greenberg suggested. “The effort would have to transcend race”

(Greenberg 1994, 430). The creation of NORI was one outcome of this new push to merge civil rights and poverty.

But the need to expand networks also carried over to support of Tijerina and the creation of MALDEF. As recounted in the previous chapter, tensions between Mexican Americans and

Blacks were erupting by the mid-1960s as Mexican American activists began to mobilize around resentments that they were not receiving the same level of attention or financial support despite their own legacy of discrimination. Various pressure tactics, including the dramatic walkout at the 1966 EEOC hearing in Albuquerque, New Mexico (in which Albert Peña figured as one of the instigators) were weighing on the Johnson administration and major philanthropic partners like Ford, creating a level of internal desperation to appear active in addressing Mexican

American concerns (see Chapter Four of Behnken 2011). Greenberg would have no doubt been sensitive to this pressure himself.

120 And while there were strong pressures from organized activists, there were also concerns that the Mexican American population at large also held demonstrable animosity towards Blacks.

Ironically, the UCLA research team funded by Ford to study Mexican Americans in order to appease activists helped to highlight the problem. Early studies released by the UCLA researchers formally revealed the “bitterness” of Mexican Americans and began to attract problematic media publicity with news headlines like “Mexican Americans in L.A. Called Anti-

Negro” (Los Angeles Times 1965). Their results contributed to an ongoing discussion in the popular press that Mexican Americans felt unfairly excluded from—if not harmed by—programs giving benefits and competitive advantages to Blacks (Salazar 1969; Moore and Guzman 1966).

MALDEF offered the possibility of easing these tensions by bringing Mexican Americans into coalition with Blacks and the rest of the civil rights establishment. The NORI-drafted proposal even raised this possibility explicitly: “It is hoped that this cooperation between the two groups will be the seed for more general cooperative efforts between the barrio and the ghetto” (NAACP

Legal Defense & Educational Fund, Inc. 1967, 22).

Of course, Greenberg first had to ensure a favorable review of MALDEF’s grant proposal if the organization was to be in the position of realizing these goals. This no doubt compounded

Greenberg’s inclination to provide ongoing assistance to MALDEF since the promise of his strong support would reassure Ford officials about investing in an applicant as inexperienced as

Tijerina. But it also hinted at future conflicts to come at MALDEF by revealing the extent to which outsiders like Greenberg and Ford Foundation officials had a particular vision and expectations to which they were expecting Tijerina to conform. But these visions, fed by their implicit understanding of what professionalized civil rights legal advocacy was supposed to look like, were not necessarily informed by the priorities of Tijerina or his nominal constituents.

121 Ironically, George I. Sánchez who had tried and failed to start his own legal advocacy organization a decade earlier warned Tijerina of exactly this concern while entering negotiations with Greenberg. As his biographer, Kevin Carlos Blanton recounts, Sánchez told Tijerina, “while the effects of discrimination against Negro and ‘Mexican’ are essentially the same, the causes, the history, and the remedies differ broadly.” As Blanton summarizes, Sánchez indicated to

Tijerina that “‘riding the coat tails of the NAACP’ was far less preferable than gaining autonomy” (Blanton 2014, 247).

Convincing Ford

As described in Chapter 2, Ford Foundation officials became convinced by the mid-

1960s that their efforts in the War on Poverty were not going to be sufficient unless they also began to take on the problem of civil rights and ongoing discrimination which inherently limited the life opportunities for American Blacks. Without addressing these concerns, there could be no addressing poverty concerns. Likewise, William Pincus, who spent much of the previous decade trying to equalize access to the courts, had begun to view the legal challenges facing the poor as systemic in nature, challenges for which his current legal aid-centered programs were ill- equipped to handle. Legal aid assistance only allowed individuals to resolve private disputes and obtain remedies on an individual basis. Legal aid work, therefore, perpetuated the legal system’s individualization of conflict. It did not address larger societal injustices and limited rights negatively impacting the poor, especially poor minorities. Such realizations led many legal advocates in the mid-1960s to push for a new emphasis on broad, class-based litigation to address the limitations of legal aid work and to establish new legal advocacy organizations that could be dedicated to an ongoing defense of broad, group interests. Many of the most prominent

122 voices making these arguments enjoyed previous ties to Pincus and he became convinced of their views.26

But as much as momentum was pushing Ford to expand support for civil rights advocacy, and particularly, class-action legal advocacy, such a move was not without dangers. Civil rights advocacy was still perceived as “too political” within the foundation world generally, and at Ford in particular. In fact, for years prior, the organization’s conservative president, Henry Heald, assiduously avoided any involvement with civil rights efforts at least in part because he feared congressional and IRS pushback (Magat 1979, 154; Nielsen 1972, 90). Such concerns were not entirely unwarranted. It was only 1957, after all, when the NAACP LDF had been forced to separate formally from the NAACP due to pressures brought by the Department of the Treasury and the Internal Revenue Service (Greenberg 1994). Likewise, although several foundations had begun funding voter education and registration programs in the South beginning in 1960, their efforts brought blowback from Southern conservative lawmakers and the public. Thus, to the extent the foundation partnered with Black organizations under Heald’s leadership from 1956 to

1965, it was typically through more politically neutral groups like the Urban League where it could support non-controversial job training and education programs (Ford Foundation 1962,

1963; Nielsen 1972, 90; A. O’Connor 1996, 592; Zunz 2012, 207–10).

Ford trustees frustrated by Heald’s conservatism finally ousted him in 1965, marking a major transition point for the Foundation. Suddenly, program officers were free to push through programs related to civil rights that Heald had stymied for years (Ferguson 2013, 49; Nielsen

1972, 90–91). But if they were freer now to support programs Heald opposed, fears of violating

26 See especially Bamberger (1966), Cahn & Cahn (1964) & Sparer (1965). Their complaints are notable as Bamberger was then head of the Office of Economic Opportunity’s Legal Services program while Sparer and both Cahns were directors of Ford-funded community law centers connected to Gray Areas programs. 123 tax law restrictions and provoking members of Congress remained omnipresent. Program officers and trustees alike understood that the purposeful redirection of funding priorities that united their anti-poverty work with a civil rights agenda was a radical one by the standards of the day (Magat 1979, 154). They knew that giving direct support to the NAACP LDF for its litigation work, for example, would be a provocation.

Given this background, any decision to fund Tijerina represented a doubling down on an already controversial investment decision. Ford officials would almost certainly draw more attacks from conservative critics, drawing more attention to the Foundation and to its new grantee. Officials were clearly willing to take on such a challenge with the pressures they were under to fund Mexican American organizations. At the same time, however, the harsh spotlight on civil rights programs increased the stakes of their grants. Ford and potential grantees were going to be operating under an additional layer of scrutiny that they would need to withstand.

Ford officials were under additional internal pressures as well given the larger ambitions at the root of their decision to support the NAACP LDF and its litigation efforts. As a Ford- sponsored report explained, even if the NAACP LDF “had as its principal mission the protection of blacks against all forms of racial discrimination, it might well be jeopardized if it were not accompanied by efforts to secure protection for other groups against whom discrimination was being practiced on grounds of race, religion, ethnic background, or sex” (McKay 1977, 8). In other words, for its support of the NAACP LDF to be successful, it was planning to fund an entire cadre of litigation-focused civil rights organizations. Tijerina and his associates represented but one cog in a larger portfolio investments in legal advocacy that was now entering a major transition point. Pincus and Ford had by this point, more than a decade of equity in the cultivation of a large, public-service-minded core within the legal profession. Now, by the mid-

124 1960s, they were partnering with allies from within that core to emphasize test-case litigation tactics around civil rights as a means of addressing the problem of poverty. The thinking here was expounded in more detail in the 1977 report:

When the Foundation made its major commitment to civil rights litigation in the late 1960s, it was a major effort by a private organization to look at civil rights as a whole. The decision was made not to limit support to a single group or area of minority rights; civil rights was identified as a unifying concept beyond particular categories of race, national origin, or sex. By linking these traditional criteria with substantive problems of housing, treatment of narcotics addicts and ex-offenders, and discrimination by government regulation or practice, it became possible to view civil rights as a matter of concern to all and an area where common solutions might be found to transcend the former lines of conceptual distinction (McKay 1977, 33).

A grant to Tijerina had elevated significance because of how it fit into this broader

“whole.” Between 1967 and 1975, Ford went on to support nine different firms dedicated to civil rights litigation, spending $18 million (or approximately $82 million in CPI adjusted 2017 dollars) (McKay 1977, 8). Tijerina represented the first aspirant to seek funding from Ford and he would be followed by others who established firms for Puerto Ricans (PRLDEF), Native

Americans (NARF), and women (WLF), as well as several broader anti-discrimination organizations.

In light of the situation, the decision of whether to award a grant to Tijerina presented risk on at least two fronts. First, although Ford officials wanted to place new emphasis on civil rights—and were indeed being pressured to do so—they had to wade carefully given the volatile terrain. They could not afford too much provocation of conservative critics. Second, they needed partners who would help them fulfill a larger vision of civil rights advocacy. This initial foray in funding a Mexican civil rights litigation firm would represent the first in an anticipated series of

125 organizations replicating the model of the NAACP LDF. MALDEF would be counted on to justify the foundation’s change in direction and set the template for a cadre of similar identity groups. A poorly chosen grantee could conceivably undermine that ambitious agenda moving forward, not to mention Ford’s reputation, robbing it of its place at the forefront of the cause- lawyering profession and the progressive wing of the Democratic Party’s governing coalition. A grant to Tijerina would not have isolated consequences but could easily complicate Ford’s dealings with both allies and opponents, posing major threats to the foundation’s future.

Promises in the proposal that the NAACP LDF would maintain a cooperative partnership with MALDEF offered some reassurance to Pincus and his higher-ups at the Ford Foundation that Tijerina would receive effective guidance and conform to expectations. At the same time, however, MALDEF also opened a new front of concern beyond Ford’s current audience of allies and critics. Through the proposal writing phase and the nearly nine-months it took Ford’s board of trustees to approve the grant, Pincus periodically revealed apprehension about how Tijerina’s organization would be received by Mexican Americans generally and Mexican American attorneys specifically. For example, early on in the process, he demanded that Tijerina secure buy-in from activists throughout the Southwest for his efforts to establish MALDEF. Tijerina notably intended to serve Texas only and assembled an initial advisory committee composed entirely of his local associates. It consisted of San Antonio attorneys Gregory Luna and Roy

Padilla, state senator Joe Bernal, Bexar County commissioner Albert Peña, judge Carlos Cadena

(one of the attorneys in the famous Pete Hernandez case), Father Henry Casso (notably the only non-lawyer), and El Paso judge Albert Armendariz, another reliable LULAC ally of Tijerina’s

(Tijerina 1998). Not only did this make it exclusively Texan in nature, only one member,

126 Armendariz, came from outside San Antonio’s LULAC chapter. Similarly, Padilla represented the only member who was not considered part of LULAC’s progressive wing.27

Although initial conversations conceived of MALDEF to be a Texas-based counterpart to the California Rural Legal Assistance (CRLA) established under the Great Society’s Community

Action Program, Pincus decided MALDEF should serve the entire Southwest, and called Tijerina in May of 1967 advising him that Ford would not approve a grant without a wider base of support. MALDEF would need more regional diversity in establishing its board with representatives from all five states of the Southwest that had significant Mexican American populations: Texas, California, Arizona, New Mexico, and Colorado. Additionally, he asked

Tijerina to obtain demonstrable commitments from Mexican American attorneys in each of the

Southwest states, warning that Ford officials would have to reject the MALDEF proposal if it received any competing grant requests (Tijerina 1998).

While having support for the MALDEF proposal might seem important in its own right,

Pincus was surely aware of the headaches that would result from complaints by other activists questioning why he entrusted Tijerina with Ford’s largesse. Ford officials could hardly want to be drawn into a debate about Tijerina’s deservingness and forced to answer criticisms about the fairness of their grant-making processes. As Tijerina took on a lengthy road trip of the Southwest to gin up support for his proposal, Pincus’s fears worries proved justified. As Bert Corona, the relatively radical leader of the Los Angeles-based Mexican American Political Association

(MAPA), would later claim, he entertained plans to establish his own legal defense fund and even reached out to Ford on the matter before being approached by Tijerina (Tijerina 1998).

27 According to Tijerina, he recruited Padilla specifically to appease “conservatives” ahead of his initial meetings in New York with Pincus and Greenberg (Tijerina 1998). 127 Already a loud critic of the United States Commission on Civil Rights and the Ford-funded

Mexican American Study Project at UCLA, he would have posed a major threat to the foundation if he felt unfairly passed over given his history of trying to shame and embarrass organizations he felt had wronged him. (Of course, as discussed later in this chapter, he still could—and did—try to publicly embarrass both MALDEF and Ford later when he got no response to several criminal cases he brought to the organization.)

As Tijerina shored up support on his end, Pincus began performing his own due diligence. He and other Ford officials shopped versions of the proposal to various other actors in their civil rights and legal advocacy networks. Among the people they requested reactions from included former NAACP LDF director and then-Supreme Court Justice, Thurgood Marshall,

William Hastie, a judge at Third Circuit Court of Appeals and former colleague of Marshall’s at the NAACP LDF, as well as members of the US Commission on Civil Rights (Pincus 1968b).

They also approached prominent Mexican American scholar Ernesto Galarza who had been an initial figure in Ford’s recent efforts to reach out to Mexican Americans, both as a consultant and grantee and was then part of a group seeking support from the foundation to create the Southwest

Council of La Raza—later to become the National Council of La Raza (NCLR) (Galarza 1967;

Miller 1967). Interestingly, Galarza responded tepidly to the proposal, noting that whereas the

NAACP LDF emerged from a membership organization, this attempt to model a Mexican

American organization after the celebrated legal organization ignored this important fact and made no commitment to building a base. He predicted the group would be overly committed to dealing with the technical field of law and would be too removed from the public for fulfilling even the “education” component in its name (Galarza 1967).

128 Galarza’s warnings did not appear to impede Ford’s ultimate approval of the MALDEF proposal, which was announced in April 1968. Notably, the decision of the trustees came nine months after the proposal’s submission in August of 1967. There is no indication of why the process took so long, though it left Tijerina anxiously moving ahead of the process to gentle rebuke from Pincus (Pincus 1968a; Tijerina 1968c). Whatever the delay, the final decision proved more than shocking to Tijerina as it awarded him twice what he asked: $2.2 million for five years (Tijerina 1998).

While a significant commitment, Ford officials also had every intention that MALDEF would develop the means to become self-sustaining in the near future. Thus in addition to concerns about preserving their own credibility as stewards of the public interest trying to satisfy their partners in government and among professional cause lawyers, they had to worry not only about MALDEF’s program development but its future financial viability. From the start, however, there were signs that this might be an uphill battle. Whether there would be a pool of funders outside Ford capable of sustaining the organization was an open question. Michael

Finkelstein, the author of the proposal, had been in discussions with the prominent progressive fundraiser Harold Oram (and future MALDEF fundraising consultant) who noted that “support for this Fund will have to be on a regional rather than a national basis due to the concentration of

Mexican-Americans in the Southwest” (Finkelstein 1967). Oram also expressed optimism to

Finkelstein that over the first five years, it would nonetheless be able to establish a solid fundraising base. As he would later note in communications with Tijerina, Oram envisioned

MALDEF being able to cultivate a significant portion of its budget through donations in a fashion similar to the NAACP LDF whom he had served as a fundraising consultant (Oram

1970). This would ultimately prove unrealistic, creating another source of tension between Ford

129 officials and MALDEF leaders while also illustrating to MALDEF leadership their ultimate dependence on Ford for organizational survival.

Anticipations Starting Out

The self-interest at stake in Ford’s support of MALDEF led to immediate confusion over organizational control. Tijerina took over as the public face of the organization, but behind the scenes, there were constant negotiations with the Ford Foundation as he and board members sought to understand both what they could and should be doing. The relative inexperience of

Tijerina and other MALDEF leaders in civil rights litigation and the day-to-day realities of running a legal advocacy organization meant to some extent that they leaned heavily on others for advice and support. Tijerina reported having significant discussions with Pincus over even basic administrative matters such as how many staff to hire, how to budget for expenses, and ways of prioritizing cases (Tijerina 1968a). But Pincus and other Ford officials overseeing the organization would also issue directives in accordance with their own expectations and priorities, not without some pushback at MALDEF.

The tension here was apparent in the paternalistic-sounding language permeating the original MALDEF proposal, which again, had been written by NAACP LDF consultant Michael

Finkelstein, as well as in the Ford Foundation’s press release announcing the grant. In what was the standard framing of the need for MALDEF, Mexican Americans were portrayed as severely behind the curve when it came to sophisticated advocacy. Ford and the NAACP LDF were essentially committing to bringing Mexican American advocates up to speed. As the MALDEF proposal itself noted:

130 Mexican-American lawyers have had virtually no experience in civil rights litigation. This is a significant problem. Over the past decade, civil rights law has become steadily more complex; it is now a recognized specialty within the law. Most Mexican-American lawyers interviewed in the preparation of this proposal had neither handled a case in federal court not litigated a federal constitutional claim. Of the seventy-five Mexican- American lawyers in Los Angeles, for example, only one has a reputation for handling civil rights matters. Not one lawyer had a library with both federal laws and the report of federal cases (NAACP Legal Defense & Educational Fund, Inc. 1967, 17). [Underline appears in the original.]

The announcement of the grant in Ford’s press release echoed these sentiments. In a quote attributed to foundation president McGeorge Bundy, it declared, “In terms of legal enforcement of civil rights, American citizens of Mexican descent are now where the Negro community was a quarter-century ago” (K. O’Connor and Epstein 1984, 248). Nor was criticism of Mexican Americans limited to its elites who needed to be taught advanced techniques of civil rights litigation. The proposal submitted to Ford also pointed out how the average public itself needed help not only in learning to look to the law for addressing their personal challenges, but in identifying their personal challenges as legal grievances in the first place:

Mexican-Americans do not have a tradition of resorting to law in matters of social concern. Their tendency is to regard any legal involvement as a misfortune. Attorneys report many cases of gross abuse of Mexican-Americans by officials in which the angry and resentful victim is ignorant of his rights and wants only to have the matter quieted. The Fund will not only serve the immediate purpose of advancing civil rights: it will also help the community to understand that its grievances can find solution within the law (NAACP Legal Defense & Educational Fund, Inc. 1967, 18).

Moreover, recalling earlier conflicts between George Sánchez and his earlier disputes with foundations and the ACLU’s Roger Baldwin, the MALDEF proposal announced the hope of its drafters that the organization would help Mexican Americans overcome their heterogeneity:

131 In addition, the effectiveness of community action to improve the situation of Mexican- Americans has been hampered by the many divisions within the community. Mexican- American leaders believe that unifying forces are important if progress is to be made, and that a legal defense fund with broad representation would be a force for promoting a larger sense of community responsibility (NAACP Legal Defense & Educational Fund, Inc. 1967, 19).

Thus, despite Tijerina assuming the public face of the organization, the premises animating it, at least as articulated in its founding documents as drafted through the coordinated efforts of Finkelstein, Greenberg, Pincus and others was to bring Mexican American advocacy in line with the standards of the pre-existing civil rights infrastructure. Mexican Americans would need to be massaged into a national demographic of common interests united by a major national organization that outside elites viewed as necessary to their advancement.

Of course, it would be unrealistic to expect that the individuals behind a $2.2 million gift would should not desire any say over the use of their money. Particularly given the vulnerabilities the Ford Foundation operated under, they would want to ensure their money would be spent effectively. Handing funding over to an unknown quantity like Tijerina with no preconditions, expectations, or accountability would be seen by their partners in the broader network of legal activists and government officials as philanthropic malpractice. The foundation’s allies to some degree or another would hold it to account for its giving which compelled officials to intervene in the work of grantees. If nothing else, they needed to show appropriate concern over how their money was spent so that it was more likely to produce a desirable impact. Ford officials had too much at stake to allow MALDEF’s leadership to evolve on its own. They had to ensure MALDEF was performing the way a civil rights litigation firm

132 was expected to perform, at least according to the standards of legal professionals and public officials.

Yet in doing so, Ford officials created an important dilemma for MALDEF leadership and staff. They did not necessarily view Ford officials as their principal, but rather, an ill-defined and heterogeneous Mexican American community. Because of this, they often felt compelled to accommodate demands or complaints coming from Mexican Americans, at least when they found themselves sympathetic to some degree. Yet, in attempting to be responsive to their nominal base, MALDEF leaders often found themselves at odds with the preferences and expectations of Ford officials. Thus, as we will see, the arrangement generated deepening tensions for MALDEF as it found itself being pulled in two directions: on one end, by its funders and at the other by Mexican American publics both of whom felt they had some claim to the organization’s operations and agendas.

While such tensions on their own would likely have led to the ultimate confrontation between Ford Foundation officials and MALDEF’s board nearly two years into the group’s existence, the fraying of relations were all the more exacerbated by a series of other errors in judgment. In the first instance, Ford officials failed to anticipate the inherent difficulties

MALDEF would face in trying to speak for a population as diverse as Mexican Americans were—and the amount of pressure these diverse voices could bring to bear on the organization.

The Mexican American side of the principal-agent tug-of-war described above not at all represented a singular, coherent perspective as various groups within the larger Mexican

American population often competed against each other for MALDEF’s attention, and not only against the Ford Foundation. Being at the center of the two largest Mexican American communities at the time made such disputes nearly inevitable.

133 Compounding this problem was the fact that Tijerina and the team he surrounded himself with represented a problematic bunch to pull off the difficult task ahead of them. In allocating

$2.2 million to Tijerina, they were investing in a group of unknown (to them) and untested

Mexican American activists who despite whatever experience they had advocating for Mexican

American civil rights, were unfamiliar with the world of poverty and civil rights law Ford had actively helped establish. They came from a parochial background without much exposure to the elite litigation practices developing at top-tier law schools like Columbia in support of the

NAACP LDF and other national litigation groups. Despite Greenberg’s reassurances of assistance, there would necessarily be a steep learning curve before they might acclimate to the professional norms of the field. Moreover, echoing the warnings of Galarza, they were being placed in an unenviable position of having to lead a brand new organization that heretofore had not existed, with no prior history, inherited issue agendas, or reputation on which to rely. They would be operating at a significant disadvantage compared to the model established by the

NAACP LDF. That organization evolved for years before it emerged as one with national significance, benefiting from an established reputation and a clear constituency.

Their limitations as leaders ran deeper, however. Despite whatever consensus building

Pincus asked Tijerina to perform ahead of approving the grant, it was too limited to reveal the polarized politics of San Antonio’s Mexican American community and in which Tijerina and his colleagues—especially Albert Peña and Joe Bernal—were intensely engaged. Whether any leaders of MALDEF could have effectively represented San Antonio’s Mexican American population with one voice is dubious, as noted earlier. But Tijerina, Peña, and Bernal were particular lightning rods within the city’s fractious political scene given their outspokenness and visibility as more radical figures who were broadly supportive of burgeoning Chicano activism.

134 If Pincus mandated that Tijerina gather maximum buy-in from Mexican American attorneys throughout the Southwest, he failed to account for Tijerina’s support at home where he had influential enemies. He also missed how Tijerina’s local commitments would distract from

MALDEF’s engagement with Mexican American publics outside Texas. For his part, Tijerina allowed his local political allegiances get the better of his decision-making. He unwisely used his position as a platform in local political disputes rather than keeping the organization above the fray while also making several incautious employment and contracting arrangements to assist his political allies. This did not go unnoticed by his watchful opponents.

The confluence of these unanticipated challenges severely restricted MALDEF’s ability to satisfy the hopes of Ford officials or build a support base. Expectations that it could advance

Ford’s interests while being warmly embraced by Mexican Americans in San Antonio and Los

Angeles quickly dissipated and as public controversies began to mount, impugning Ford’s own reputation, officials at the foundation decided a change was necessary. In a dramatic showdown in March of 1970, its program officers gave an ultimatum involving the departure of Tijerina, a relocation from San Antonio, and recruitment of more experienced hands on the board of directors. That showdown will be addressed shortly. For the moment we will turn to the leadership issues that quickly emerged and served as the most immediate cause behind Ford’s forceful intervention.

Administrative Challenges

That Ford might have chosen the wrong man to lead the new organization became abundantly clear over his two-year tenure. The problems were two-fold. First, Tijerina revealed himself to be a poor manager on various levels he made a series of needless political and

135 accounting errors that brought negative attention to the organization which funneled up and embroiled Ford as well. Second, he simply had not fully bought into Ford’s agenda of test case litigation and had a much more parochially inclined mind-set that did not square with the national ambitions Ford had for MALDEF.

That Tijerina’s position in the organization owed less to his administrative or litigation expertise than to the initiative he demonstrated in forging the group has been discussed earlier. In several external evaluations commissioned by Ford throughout his tenure, Tijerina was faulted for failures to pay appropriate attention to fundraising objectives, poor bookkeeping practices, and incautious financial management in general that led to overspending problems. These qualities were combined with a limited concern (ironically) for the legal rules governing non- profit finances which nearly threatened MALDEF’s (and Ford’s) tax status (Brest 1971b;

Mahoney 1973a; Wolinsky 1971).

Clearly, the latter issue raised the loudest alarms with his Ford handlers. It was not altogether apparent that the missteps producing these scandals were the result of simple oversights either. One of the less suspicious incidents involved a failure to exercise due diligence by investigating the group’s tax liabilities over a law school scholarship program it managed

(Brest 1971a, 1971b; Edley 1970; Schoenbaum 1970; Tijerina and Obledo 1970). The issue was apparently serious enough, however, that Ford found itself having to release a public statement carried by the local media admitting the error in order to address the embarrassment (The San

Antonio Light 1969).

More troublingly, it emerged that two board members and close political allies had been used as referral attorneys and compensated by Tijerina for services rendered, raising public accusations of self-dealing. Not only that, but Tijerina was also alleged to be using

136 organizational resources for political campaigns on behalf of these very same board members,

Joe Bernal and Albert Pena, who were local elected officials (Murphy 1970; San Antonio

Express and News 1969b; The San Antonio Light 1969). Similarly, Tijerina had hired a young, radical activist, Jose Angel Gutierrez, as a community organizer for the group but who was apparently engaged in political activities potentially with Tijerina’s knowledge. Gutierrez had already come to some prominence as the leader of the Mexican American Youth Organization

(MAYO) which was coordinating several controversial school walkouts by Mexican American students in surrounding communities. In addition, Gutierrez was a leader of the La Raza Unida political party, an activist Chicano political party involved in local elections and had been accused of working on its behalf while on MALDEF’s time clock. As Tijerina was publicly supportive of both MAYO and La Raza Unida, as well as of the walkouts, allegations emerged that he was essentially using Ford’s grant money to underwrite Gutierrez’s political work for those organizations (H. B. Gonzalez 1969a, 1969b; San Antonio Express and News 1969a;

Tijerina 1998).

The extent to which these incidents proved damaging to both MALDEF and Ford may have been exacerbated by the fact that they were trumpeted by Henry B. Gonzalez, the local

Democratic congressman and the first Mexican American from Texas to be elected to the House.

Animated by his antipathy to the radical, separatist messages of MAYO and La Raza Unida he frequently denounced the groups and publicized MALDEF’s connections to Gutierrez. In one notable episode, Gutierrez was quoted making provocative statements including calls to “kill all the gringos.” While Gonzalez actively denounced these remarks, neither Tijerina, Bernal or Pena would outright condemn them. In fact, they publicly gave Gutierrez qualified support while criticizing Gonzalez as the perpetrator of overheated rhetoric (Aarons 1970; Cardenas 1969a,

137 1969b; San Antonio Express and News 1969b). Thus, the vendetta Gonzalez developed with

MALDEF, and which Tijerina continued to stoke, reflected larger antagonisms between radical and moderate visions of Mexican American integration. But it also had roots in more immediate and personal concerns. Bernal, Pena, and Gutierrez had all become active political opponents of the congressman and supported opposing candidates for office. In other words, the accusations that MALDEF was self-dealing and directing foundation money toward political purposes was not only a matter of principle for Gonzalez because the funds were ostensibly being used in efforts to oppose his political career.

In furthering this public feud with the congressman, Tijerina overlooked the power available to the congressman. As a member of the Finance Committee with close ties to Ways and Means chairman Wilbur Mills—who exercised powerful control over tax policy, including tax exemptions—he had the ability to do more than let the feud play out in the newspaper. He was in a strong position to harass the Ford Foundation, which he did through a series of threatening letters demanding clarification about how MALDEF spent its grant money.

Moreover, he became a hostile interrogator during hearings in which Ford was put on the hot seat over a variety of additional concerns about the politicized nature of its giving and that led to new restrictions on philanthropy through the Tax Reform Act of 1969 (H. B. Gonzalez 1969a,

1969b; Nielsen 1972; Sviridoff 1969).28 Tijerina (and Ford) may have simply been unlucky to have such a well-placed opponent able to breathe more life into these scandals than they might have otherwise had. But it is also a possibility that the many other congressional critics of the

Ford Foundation would have picked them up regardless.

28 Among other things, the foundation had provided direct financial assistance to aids of Robert Kennedy which had no immediate charitable purposes (Nielsen 1972). 138 Aside from Tijerina’s apparent managerial shortcomings and proclivity to political scandals, he also had clear issues with Ford’s larger impact litigation efforts. He never fully committed to the NAACP LDF-style strategies and neither had much of his staff. Officials at

Ford pressured him about his litigation strategies (or lack thereof) throughout his tenure, insisting that he take on more impact litigation as originally envisioned. They constantly complained about the number of legal aid-style cases MALDEF took on, particularly employment discrimination complaints coming from the local San Antonio public as well as free speech and police brutality cases demanded by militant Chicano activists. The most MALDEF would accomplish, they worried, was relief for individual claimants, something OEO and other legal aid providers were already capable of doing (at least in employment discrimination). Further, officials and consultants hired to evaluate MALDEF argued that when the group did engage with significant litigation, it did so largely through filing amicus curiae briefs, and poor quality ones at that (Brest 1971b). Much of Tijerina’s internal legacy captured in evaluations after his tenure ended was as a means of contrast. Most would make a point of noting how much more orderly basic administrative systems had become and how much more selective and in sync its litigation programs had become, matching with Ford’s goals (Brest 1971a; Campbell, Pincus, and Stewart

1970; Wolinsky 1971).

Community Challenges

In establishing MALDEF, Tijerina and his associates assumed the necessity of being based in the Southwest with an ultimate goal of establishing branch offices in major Mexican

American population centers. Hence, the group set its headquarters in San Antonio and Los

Angeles with hopes of inspiring average Mexican American citizens, letting them know they had

139 a voice working for them in the courts.29 The problem with this arrangement was that visibility encouraged local Mexican Americans, who after all had limited means for hiring lawyers, wanted MALDEF to take on litigation complaints.

Unsurprisingly, once the need for adequate representation within the community became clear to MALDEF staff, they had a hard time turning that public away. Individuals could and did walk into the offices seeking legal help, explaining situations that engendered sympathy from staff attorneys and pressed on their consciences. As a result, Ford officials developed significant concerns about the overwhelming number of legal aid cases on the organizational dockets.

Consultants sent to evaluate the organization in the early years made frequent note of the issue in their reports, as it clearly distracted from developing a docket of cases with larger significance.

Evaluators were not unsympathetic to the arguments staff presented in defense of their caseloads but nonetheless viewed the situation as a cause for concern. After making a site visit to San

Antonio, even Jack Greenberg (by then a board member) relayed concerns to Ford program officer Leonard Ryan that MALDEF was falling short of performing the kind of work they envisioned, though he noted with sympathy that LDF struggled with many of the same challenges to keep a narrow docket of cases that avoided “minor matters which have no substantial impact on the community” (Greenberg 1969). It was shortly understood that the larger Mexican American public would have limited appreciation for the broad, rights-based claims that MALDEF had been charged with litigating. But there were no easy answers for

29 Several board members also complained, for example, over the decision to hold their annual meeting in Washington, DC. As Manuel Garcia wrote in a letter to Tijerina that was circulated to the other members, he felt it important to stay in the Southwest as “The publicity of board meetings in the city where we meet gives MALD publicity to the people it's supposed to help. It gives the board members the exposure to the problems of our area” ((M. H. Garcia 1969)). 140 addressing the pressures staff attorneys felt to provide immediate relief to members of the public and put off the longer, more arduous work developing legal precedents.

Having a visible presence in major Mexican American cities brought with it as well exposure not just to diffuse publics that made individual demands on MALDEF’s resources and time, but to pre-existing Mexican American organizations and political cliques that likewise imposed their own expectations on the organization. These included people like Henry B.

Gonzalez who detested MALDEF’s alignment with his political opponents and largely wanted to limit the group’s interference on his turf but who also opposed the group’s agenda and would no doubt have preferred that it reject identity politics. He stood with more conservative members of the community who thought rights-based political claims and demands for special dispensations were inappropriate and harmful to their larger assimilative goals. It also included more radical elements in the Mexican American community who were more interest than Gonzalez in coopting MALDEF and using it to advance their own personal and political agendas. Tijerina was already sympathetic and was happy to use MALDEF as a service organization to the school walkout campaigns being organized by Jose Angel Gutierrez and other activists, to the chagrin of

Ford officials (Navarro 1995).

But even Tijerina was particularly concerned by the pressures in Los Angeles where the

Mexican American population was of more recent arrival and did not have the same kinds of political cliques with deep roots which was more familiar to San Antonio. Instead, Mexican

American politics was more characterized by “militants,” as staff often referred to them.

Organizations like the Brown Berets, MAPA, and LUCHA had the largest and most vocal presence and were frequently engaged in protests that often provoked violent police tactics and mass arrests. When MALDEF emerged in the city, they viewed the group as a resource to defend

141 their supporters against police brutality and illegal arrest at protests. They also had a significant interest in criminal justice and wanted MALDEF staff to take on these pet projects as well.

As Tijerina would find out, refusal to cooperate with the Los Angeles activists came with the risk of vocal attempts to embarrass the organization. Most of the groups resented MALDEF for its sinecure from Ford and believed that MALDEF had an obligation to share its resources.

When that did not happen, they would openly protest in an effort to undermine MALDEF’s legitimacy as a representative body for the Mexican American community.30 Given the constant criticism, Tijerina ultimately decided that it would be wiser to dedicate a few lawyers to deal specifically with those groups. As he explained in a letter to Ford, they demanded “an attorney to be assigned to their barrio office for the purpose of handling their cases, including the defense of criminal cases of some of their members” and made a request for funds so that a full-time attorney could “be assigned to work out of the barrio offices of the Mexican-American Political

Organization[sic] MAPA and LUCHA [the League of United Citizens to Help Addicts], an adult barrio militant group” (Tijerina 1969b).

The situation was not altogether different from that the group faced with members of the public seeking legal assistance. Staff were not entirely unsympathetic to issues the militants raised either. And most importantly, they understood that stonewalling both groups and refusing to offer services so that they could focus on Ford’s preferred agendas would ultimately threaten their legitimacy and basic ability to be recognized as a representative voice for Mexican

Americans. Staff argued that engagement in legal aid, police brutality, right to protest, or

30 MAPA president Bert Corona, for example, tried to pressure MALDEF into helping a pair of Mexican American inmates serving sentences on narcotics offenses. The refusal by staff attorneys to offer assistance led Corona to send multiple copies of a letter to inmates and to the Ford Foundation in which he threatened to expose Ford’s support of these “false friends of the Chicano” and “mount a nationwide campaign to force the Ford Foundation to stop funding such false operations” (Corona 1969). 142 criminal defense cases were all necessary to help the group garner popular support. They also accepted activists’ arguments that safety from police persecution would enable Mexican

Americans to protest more freely and achieve equal rights. As an evaluation team led by non- profit attorney Sheldon Wolinsky would later report to Ford:

Staff attorneys frequently referred to the necessity of taking cases from geographical areas primarily because Mexican-Americans have received no adequate representation there at any time. They also, quite understandably, talk about bringing cases which are important to the community groups whether or not they fall into any of the three [organizational priority] classifications. For example, MALDEF attorneys frequently mentioned the importance of police brutality cases and protecting community leaders from any kind of unfair treatment. […] The problem of priorities is probably best exemplified by police brutality cases. One element of the Chicano community— especially the younger militants—regards these as the highest priority of a legal program servicing their needs. They feel that once police brutality cases are handled vigorously, they are in a better position to assert their lawful rights boldly. […] Aside from the amount of effort which must go into such cases, it is hard to believe that any single police brutality case would be of more long-run benefit to the Chicano community than a suit challenging mental retardation testing, employment discrimination by governmental bodies or a right to an equal educational opportunity (Wolinsky 1971, 12–13).

Whether Tijerina had the support of each of these groups remained an ongoing concern of his. He was certainly wary of the backlash if different publics and radical groups did not get their way. In his first annual report to Ford, for example, he noted the pressure militants had placed on the LA office but explained that “Generally we have excellent rapport with all these organizations although there have been occasions of misunderstanding since some of these militant organizations are requesting funds from MALD to finance paid community involvement specialist [sic] to work out of their particular organizations. It is difficult for them to understand that MALD is not programmed to make such allocation of funds or make such types of sub- grants” (Tijerina 1969a, 5).

143 Tijerina’s second in command, General Counsel Mario Obledo, expressed more frustration than his boss about the frequent concessions to “militants” and individual members of the public. He even suggested in memos to Tijerina and the MALDEF board that they should reduce their presence in Los Angeles because of all the casework that these groups had pressured his staff into (Obledo 1969b, 1970c). As he complained to Tijerina about the LA office caseloads: “California has more militant groups demanding legal services than any State which our operation covers. To service these demands would call for separate funding of the California office - a ‘California Mexican American Legal Defense Fund’” (Obledo 1969b, 2). Yet whatever objections Obledo had to criminal defense and police reform cases urged on them by local activists, these issues continued to receive significant attention. This attention came as well in spite of repeated criticisms from Ford Foundation officials and evaluators that there was little likelihood that providing criminal defense was hardly likely to affect “police reform” (Brest

1972, 3–5).

Ford Puts its Foot Down

After two years with Pete Tijerina at the helm, Ford announced in fall of 1969 that it would be conducting a formal evaluation of the organization. Unlike the usual monitors that it had been contracting with to evaluate MALDEF’s operations for the foundation and provide advice to MALDEF staff, this had more of an air of formality. A three-member panel had been arranged to visit, two of whom were already well known within the organization. They included former program officer William Pincus, the man who originally worked with Tijerina on the

MALDEF grant proposal (and who had since moved on to head the new Ford-funded Council on

Legal Education for Professional Responsibility) and regular Ford monitor Clifford Campbell.

144 It would not be immediately clear until the results of the evaluation were announced at

MALDEF’s annual board meeting in March of 1970, but Ford officers clearly intended the evaluation to lead to a major organizational shake-up. No doubt troubled by the local political scandals that were filtering up and endangering the Ford Foundation’s tax status, as well as chronic problems with the organization’s budgets, and a general failure to orient its dockets toward cases that promised high profile reforms, it needed to step to at least attempt to salvage the final three years of its grant.

Asserting the authority to force a re-organization presented no small challenge, however.

Facing off against a Mexican American operated organization in the midst of constant questions about its commitment to the Mexican American raised obvious concerns within the foundation, not least of all because it had no Mexican Americans on its staff. MALDEF was, after all, established as a Mexican American organization and the meddling of non-Mexican American officials at Ford presented a risk. As MALDEF’s 1967 grant proposal to Ford explicitly noted,

“Mexican-American leaders are agreed that a civil rights litigation program for Mexican-

Americans can best be carried out by Mexican-American lawyers or by an organization in which they predominate,” but too much foundation interference would clearly violate this conceit

(NAACP Legal Defense & Educational Fund, Inc. 1967, 18). But these risks had to be balanced against the costs of doing nothing.

In not fully committing to impact litigation, Tijerina had perhaps failed to appreciate the difficult situation in which he was placing Ford. Officials at the foundation were not simply acting out of some arbitrary desire to dictate agendas on MALDEF, but rather, out of concern for their own vulnerability to regulatory pressures and a need to maintain support from its networks of allies. They all had a stake in how MALDEF performed and MALDEF’s incompetence or

145 failure to live up to expectations would all carry over into their assessment of Ford’s competence. Simply abandoning MALDEF at this point would have demonstrated a major public failure for the foundation and its elite peers who had invested heavily in the civil rights and legal advocacy movements. Allowing the group to continue in the direction it had been going not only raised the similar appearance of failure, but risked the very real likelihood that MALDEF would stumble further into controversy which might bring Ford down with it.

Confronted with this tough set of options, Ford officials took their chances on the only one that might yet still give them something to show for their efforts, even if they risked immediate recrimination. Thus, in a surprise at the March board meetings, officer Christopher

Edley requested to make a presentation announcing the results and recommendations of the

MALDEF evaluation team to a shocked membership (see Campbell, Pincus, and Stewart 1970).

Of the three most drastic recommendations, the review panel first suggested that MALDEF headquarters be moved from San Antonio to Washington, DC. Second, it insisted that the board be expanded and diversified, ensuring that its composition would be “at least one-third non

Mexican American.” Even more controversially, this item included a further recommendation that “attention [be] given to Anglo-membership which can bring the activities of the Fund to the attention of the non-Mexican American community” the logic being that non-Mexican

Americans would enable the group “to obtain the kind of wide support, financially and politically, from the American society which is required for such an organization.” As it stood,

Jack Greenberg, the NAACP LDF’s Jewish director, was the only non-Mexican American on the board. Third, it recommended eliminating the executive director position and giving its administrative responsibilities to the general counsel.

146 For Tijerina, this last recommendation put the writing on the wall. In suggesting that his position be eliminated with responsibilities vested in the general counsel, a position capably being served by Mario Obledo, it was clear Ford wanted him out even if the recommendations did not say so directly. Also left unsaid was context which might explain why Ford officials were so concerned about the local political controversies MALDEF became embroiled. The report simply noted that “the location of the head office in the center of one of the two largest Mexican-

American communities in the United States has embroiled it undesirably in the vicissitudes of local politics,” which “has given us some insight into several reasons for the establishment of a new ‘seat of government outside the original thirteen colonies’ when our own country was founded” (Campbell, Pincus, and Stewart 1970). Again, Tijerina recognized at least some of what had been left unsaid: namely that the heat brought by Congressman Henry B. Gonzalez had succeeded in convincing Ford to make a change.

The board, realizing that it had no leverage in the situation, ultimately voted to approve the recommendations despite their indignant reaction to being given an ultimatum and being told how to run their organization. But Tijerina did not go without a fight. He, Bernal, and Pena all went to the media to denounce Ford as well as Gonzalez—the “mad man of Washington”—who forced the foundation’s hand (Associated Press 1970a, 1970b; Beene 1970; Murphy 1970; San

Antonio Express and News 1970; The San Antonio Light 1969; UPI 1970). In response, Ford issued a press release denying their claims that the board was given an ultimatum, claiming that it had accepted their monitors’ recommendations on its own volition (Associated Press 1970a,

1970b; Beene 1970; Murphy 1970; The Ford Foundation 1970). But it never stated what alternative options board members were presented with if they refused.

147 As a result of the reshuffling, Obledo would technically receive a promotion in retaining the role of General Counsel, since this position inherited executive authority. His leadership was warmly welcomed among foundation officials and evaluators given his earlier efforts to push the organization toward more impact litigation. But perhaps unsurprisingly, he initially struggled to make significant headway in weaning the dockets of legal aid cases. Part of the problem was that despite the headquarters relocation to San Francisco, MALDEF retained the regional office structure it had had since the beginning, maintaining San Antonio as a regional base, along with an office in Los Angeles that had been in operation since the group’s founding. Moreover, it continued to open new offices elsewhere in cities like Denver. These decisions continued to send a message that MALDEF was a local resource for the community consistently inviting more legal services cases and leading to predictable complaints from evaluators that MALDEF—and especially its regional offices—lacked focus (Brest 1971c, 1972). Staff and board members also maintained a belief that their stability as an organization demanded that they do a better job of attracting public support and appeared to learn the lesson that one of their biggest problems during the first two years was ineffective public relations work. As we will see in the next chapter, this ambivalent understanding of their relationship to constituents would continue to create tension with Ford officials into the 1970s.

148 CHAPTER 5 THE 1970S

Faced with losing nearly all their revenue, MALDEF board members understood they had little leverage to contest the recommendations of the Ford Foundation’s program officers.

But in agreeing to meet the foundation’s terms, the board of directors had by no means assured

MALDEF’s ongoing financial survival. Ford officials had from the start intended that MALDEF become a self-funded organization and that eventually, it would not be dependent on Ford for all of its resources. But by 1970, MALDEF had yet to diversify its funding sources and indeed, among the failings the Campbell review team ascribed to Pete Tijerina was his inattention to fundraising and failure to direct the organization toward greater financial independence. Thus, the Ford ultimatum not only sought to bring MALDEF’s toxicity under control, but to position it for better fundraising potential.

Nonetheless, MALDEF would continue to struggle with finances in the ensuing years.

These problems with the funding challenge were exacerbated by ongoing failures of staff and board members of how to address legitimacy threats. On the one hand, they understood that they needed to shore up the organization’s litigation programs in line with expectations of Ford and the larger professional class of cause lawyering and to cultivate additional sources of funding.

On the other, they were still preoccupied with reaching out to the Mexican American public at large and to other groups, believing their legitimacy rested on active outreach. As the 1970s continued on, however, the latter impulse diminished as pursuing community endorsements proved difficult and problematic. Most of all, it complicated efforts by MALDEF to construct a

149 national Latino agenda and accomplish what had eluded earlier efforts by Mexican American civil rights activists like George Sanchez as they tried to adapt to paradigms of other national civil rights groups. But this largely came at the expense of papering over the internal heterogeneity of the Mexican American population, as the group sought to portray particularized needs of different segments of the population in line with giving priorities of the new mix of local and national philanthropies they courted for grant money, in branching out from Ford.

This led MALDEF to pursue agendas that would have generated more controversy internally at its inception and did, in fact, produce tension among the original board members who remained. But it helped foundation officials have Mexican American advocacy adapt to forms of giving in the mold of African American civil rights advocacy, and to their own processes to insulate against legitimacy challenges, giving to discrete program areas where they were better able to direct, monitor, and hold grantees accountable. In the process, MALDEF saw its own connection to the base dissipate, highlighted by encounters where the communities they claimed to represent protested MALDEF’s agenda.

As it entered the 1980s, internal memos described staff and leadership fears that it had become an overly bureaucratized, segmented organization. But it was an ascendant organization, primed to play major roles in immigration politics in ongoing amnesty debates leading up to

IRCA in 1986 and in perhaps its most notable legal victory, Plyler v Doe (1982) which forbade states from denying undocumented students access to K-12 education.

The chapter follows this trajectory, describing how the Ford-directed reorganization was intended to set the group up for more effective fundraising, and the way that it ultimately came to develop its dependency on program grants from various foundations and government contracts.

In particular, it describes problems the group encountered in trying to branch out for greater

150 financing and support from the broad public, leaving it to eschew a membership-based model in favor of an ongoing dependence on third-party support. It then goes on to explore how this affected which agendas the group pursued, particularly its elevation of issues congruent with larger concerns of the liberal Democratic party coalition that emphasized the social services needs of the community and away from broad concerns of discrimination that first animated its founders. This single-minded focus services and needs of the Mexican American, mostly recent immigrant community, is popular with foundations and corporate sponsors who want to be seen as serving the highest-need populations, but has left the terrain barren for the broader population of Mexican Americans, like those who made up the ranks of LULAC and the American GI

Forum who also wanted and were in need of institutions to pursue upward mobility and broader social integration.

Operation Chicano

In the immediate wake of the vote by MALDEF board members to accept the Campbell recommendations, members of the executive committee set to work on an implementation plan.

That plan, internally dubbed “Operation Chicano” involved four main considerations: devising the terms of Tijerina’s departure, revising the responsibilities of the enhanced General Counsel position to be inherited by Mario Obledo, establishing rules and procedures for the board expansion, and identifying a suitable new base for the organizational headquarters (Ibañez

1970a).

Each of these recommendations was meant to address the immediate scandals surrounding MALDEF (and therefore Ford) by insulating the group from outside pressures and otherwise protecting the group against becoming the object of intramural debates among

151 Mexican American political factions. But they also had a secondary purpose, namely to better- position the group’s fundraising prospects. Ford officials did not expect to be MALDEF’s primary funder in perpetuity and throughout the first two years indicated its hope that MALDEF would become self-financing. The organization, under Tijerina’s leadership, failed to make much progress in raising additional funds and the future did not look much better without significant improvements in the overall administration of the organization. Of course, it was this failure to augment funding that gave Ford officials their financial leverage over the board in the first place, allowing for Tijerina’s ouster.

Thus, even while the Campbell report foregrounded the need to move to “neutral” ground safe from the “vicissitudes of local politics” and the creation of a less Texas-centric, diversified board, its recommendations were also quick to point out the fundraising implications. Recruiting more “Anglos” for an expanded board of directors would not only limit MALDEF from associations with factional politics and increase the level of guidance from neutral experts, but it would also bring people into the organization with connections to wealthy donors and foundations on the East Coast. Not only would an East Coast relocation prevent MALDEF from becoming embroiled in factional politics, it would also put the group in a wealthier part of the country where it could access and build relationships with more potential funders.

The relocation and board recommendations were all the more important in the minds of

Ford officials because of the unique geographic burdens they understood to be working against

MALDEF’s fundraising potential. Concern sprang from the fact that the Mexican American population—and not just MALDEF—remained invisible to donors on the East Coast given its isolation in the Southwest. People in East Coast money networks had few encounters with the

Mexican American public and limited awareness of the conditions they faced. As they and their

152 consultants feared, East Coast donors were unlikely to donate to an organization like MALDEF since Mexican American issues were nowhere on their agendas. MALDEF staff therefore faced the double challenge of elevating the profile of Mexican Americans in general as well as of their own efforts to support the Mexican American public. This problem had been well understood internally at MALDEF already given their initial forays into fundraising with Oram Inc., a liberal fundraising group founded by direct mail pioneer and progressive activist, Harold Oram. In discussing the tepid results from efforts to reach out to foundations and liberal donor lists, Oram and MALDEF staff pointed to the low prominence of Mexican American issues and continued to spark internal discussion over, at the very least, establishing a Washington branch office (Ibañez

1970b; Oram 1970). But bringing prominent New York and Washington figures onto the board and moving MALDEF’s headquarters to those cities, there was a better chance of creating more exposure not just for the organization itself, but for the Mexican American public as well. Ibañez

But plans that Operation Chicano would put MALDEF on better financial footing also ran into pushback from current board members and staff who continued to have a different perspective from Ford officials on their obligations to the Mexican American public. Because their organizational aspirations involved representing Mexican Americans, they continued to believe their job, and indeed their legitimacy, depended on having public support. In fact, internally, they conveyed a different narrative of failures under Tijerina’s leadership than the one

Ford presented. To be sure, they accepted many of the criticisms leveraged by Ford officials.

Various board members confessed during meetings that MALDEF had its mission and identity overly dominated by its Texas-based leadership and did not demonstrate enough commitment to issues in other states. They also understood that Tijerina’s public confrontations with

Congressman Gonzalez and outspokenness in the larger San Antonio political scene was

153 problematic and that the controversies hurt the organization’s reputation. Indeed, though shell- shocked by the recommendations, members at the meeting made similar arguments about the need for the group to “get out of the line of fire,” and that “MALDEF is going to be under pressure wherever you have Chicanos without getting involved with the local situation”

(“MALDEF Board of Directors Meeting Minutes, Washington, DC, March 13, 1970” 1970, 9).

Nor did they deny Ford’s complaints about the docket being overloaded with legal aid casework rather than impact litigation. Despite whatever misgivings they had about removing Tijerina, they were largely optimistic about the change in leadership promoting Mario Obledo because they believed him to be more capable of bringing MALDEF up to professional standards. He had long issued internal calls for narrower case selection and would now be in better position to do so (Obledo 1969b).

Where their narrative differed from Ford was their view that many of MALDEF’s challenges could be traced back to poor public relations outreach. Even Obledo shared this general view. As he wrote in his annual report to the board, just ahead of the March 13 meeting,

“We have not been without criticism and at times this criticism has been justifiably forthcoming.

Other criticism, however, has been misdirected and unfounded, and a large portion can be attributed to a lack of a meaningful public relations program by MALDEF” (Obledo 1970a). Joe

Ortega, head of the Los Angeles office, shared this general viewpoint as well, advising that the reorganization plan had to involve a “professional relations program” since “Part of our major problems have been in the lack of effective communication with ‘our Community’ and with the public at large” (Ortega 1970). Such arguments rested uncomfortably with the future envisioned by Ford officials. They wanted to extricate MALDEF from the Mexican American public so staff could focus on cultivating the group’s image with elite audiences outside the community. But

154 despite whatever headaches the public and other political actors generated, staff and board members nonetheless remained convinced that public engagement was necessary and that the group’s success depended on building support among Mexican Americans. For all the pressure they faced from “the militants,” from conservatives like Henry B. Gonzalez, and from unhappy locals, they nonetheless believed that reasoned engagement could dispel the accumulating complaints, if not also necessary to the organization’s future.

This left Ford’s relocation proposal the most difficult issue to be resolved. In suggesting that MALDEF move its headquarters to the East Coast, Ford officials challenged the implicit assumptions of everyone on the staff and the board of MALDEF that serving the Mexican

American public required being situated in that public. How could MALDEF represent the

Mexican American public while being so isolated from it? Would it be able to remain relevant to

Mexican American concerns? Could it still provide and manage legal services from Washington?

Why would anyone take it seriously as a Mexican American organization? Would MALDEF’s current staff even want to leave the Southwest?31 As soon as the Ford officials left the March

1970 meeting having dropped their bombshell list of recommendations, members took a vote to immediately take up debate on the relocation demand where these concerns permeated discussion. Moreover, they continued to preoccupy internal discussions for the next four months while debating the pros and cons of various sites.

31 This question was particularly relevant given concerns about whether they would be able to retain Mario Obledo as Tijerina’s successor. Obledo indicated he would not accept the newly expanded “general counsel” role if the organization moved to the East Coast and that he would weigh the disruption to his family life. Recounting his conversation with Obledo, Executive Committee chair Richard Ibañez indicated Obledo would take the position “provided it was not at a great sacrifice to himself and family. He said that he had recently purchased a house in San Antonio and he and his family were permanently settled there” (“Minutes of Meeting of Executive Committee of MALDEF Held April 3, 4, 1970 at Los Angeles, California” 1970, 3). In fact, Obledo’s family stayed behind in San Antonio when the MALDEF headquarters ultimately moved to San Francisco, leaving him to have to travel to see them. 155 Although board members clearly understood Ford’s rationale for an East Coast site and did have some backers, at least initially, it soon became clear that the weight of opinion was against leaving the Southwest.32 Debate soon focused on other cities in the five-state region, including Albuquerque, Tucson, Phoenix, San Francisco, and Denver though feeling ongoing pressure to select an East Coast city, the matter dragged on. As the notes from an April meeting of the board’s executive committee described:

The Committee agreed that the selection of a new place for the headquarters of MALDEF was the most difficult to resolve. Many factors were involved. It was pointed out that MALDEF is primarily a legal services organization. For this reason, many board members are of the opinion that its headquarters should be in the Southwest. Its legal services program can be more effectively administered if its headquarters is within the geographical area where five million Mexican-Americans reside. In addition, there is a symbolic value in having its headquarters in that geographical area (“Minutes of Meeting of Executive Committee of MALDEF Held April 3, 4, 1970 at Los Angeles, California” 1970, 7–8).

Even as the debate over the ideal relocation site continued to take up energy internally, an early consensus site emerged behind the scenes. Within days of the March meeting, both Tijerina and Obledo sent letters (Obledo 1970b; Tijerina 1970b) to Ford and the executive committee recommending San Francisco as a compromise site despite the fact that the Campbell recommendations specifically stated that the new headquarters had to be located “outside the two main centers of Mexican American population,” (Campbell, Pincus, and Stewart 1970) effectively ruling out California and Texas. It also became a notable favorite in internal memos

32 Note that during the meeting itself, Ford program officer Christopher Edley suggested that the headquarters should be moved either to Washington DC or Denver. In the Campbell committee’s official recommendation memo, however, only Washington “or some other important central city” were mentioned (Campbell, Pincus, and Stewart 1970). 156 evaluating potential relocation sites and in various formal and informal meetings of key board officials.

San Francisco became the popular choice because it effectively balanced the competing concerns dividing most board members and Ford officials. It was in California, which was technically still the Southwest, therefore allowing MALDEF to protect its “legitimacy” with the

Mexican American public. But looking at it from Ford’s point of view, San Francisco was also a much bigger city than any of the other potential sites in the Southwest. It was more connected to the rest of the country than anywhere in Arizona, New Mexico or Colorado and boasted far more of the kinds of amenities and resources that Ford officials valued. At the same time, even though it would allow MALDEF to maintain symbolic value, it was “at the perimeter” of the Southwest lessening potential entanglements with Mexican American populations (Obledo 1970c, 10).

Since Ford’s mandate had to do with being exposed to local Mexican American politics, San

Francisco notably had few Mexican Americans. The executive committee shared this logic.

The point was stressed that the recommendation being considered was that ‘the main office be established outside the two major communities of Mexican-Americans in Texas and California. San Francisco, unlike Southern California, is not one of the major communities where Mexican-Americans reside, hence, San Francisco could be considered as an alternative consistent with recommendation #3 (“Minutes of Meeting of Executive Committee of MALDEF Held April 3, 4, 1970 at Los Angeles, California” 1970, 8).

Debate would not formally settle until the June 1970 board meeting, but internal documents frequently gave it an edge over competing sites. In a report to the board ahead of that meeting, the Program and Planning committee noted that though “not readily identified with

Mexican-American problems,” it was in close proximity to Oakland and San Jose with more readily apparent Mexican American populations. And if San Francisco was not necessarily

157 known for Mexican-American problems, an office there would still “place MALDEF on the perimeter of the Mexican-American community of the southwest and would give it a vital overview of the entire problem area” (Obledo 1970c, 10–11). This gave it more credibility than

Washington would in being able to effectively represent Mexican American concerns, because it was still on the ground in the Southwest, even if at the periphery. Additionally, a San Francisco location would accomplish many of the Ford Foundation’s priorities as well. As the committee report also noted, it was:

within short distance of Stanford University, the University of California, and the Hastings College of Law, has outstanding news services, and is the headquarters for several large foundations. It has a favorable political climate. In addition, CRLA and NAACP Legal Defense Fund have offices there and MALDEF could correlate its work with them (Obledo 1970c, 11).

MALDEF would, therefore, have access to impressive support structures that could help bring its attorneys up to speed with the state of the art in legal advocacy while also staying abreast of new professional developments. Ford ultimately consented to the logic and the move to San Francisco was approved at the June 1970 board meeting.

Adding to the board membership created less immediate concerns for board members and staff, though it would ultimately mark a major turning point in the organization’s direction. To be sure, Tijerina’s firing opened the door to questions about the undue influence of non-Mexican

Americans calling the shots. After his firing, Tijerina sent a note bitterly complaining about the fact that Ford had no Mexican Americans on staff to Christopher Edley, the program officer overseeing MALDEF and one of the only African Americans on its staff. But despite the baldly stated preference for more “Anglos” on the board, the recommendation provoked little evidence of internal pushback. For one, MALDEF already had a history of relying heavily on white staff

158 members, especially to fill its staff attorney positions. But they also clearly accepted Ford’s stated intentions. Staff and board members similarly wanted to see MALDEF raise its profile nationally and develop independent revenue sources. Moreover, they sensed the benefits of having more experienced hands involved.

The practicalities of restructuring the board, however, put in stark relief the way forward for MALDEF and the extent of the departure from the initial process. At the founding, Tijerina sought to bring aboard prominent Mexican American lawyers from the five Southwestern states.

This may have been mostly a product of Ford’s edict to Tijerina that he needed to shore up support and ensure the foundation received no other competing proposals. But the people

Tijerina recruited for the board looked a lot like himself: lawyers of local renown who had been active in old-line, federated associations like the GI Forum or LULAC. A few had ties to prominent firms, notably Richard Ibañez and Lou Garcia from California, but all were chosen for being locally rooted lawyers who were involved in public service. In contrast, the board’s new

“Nominating and Personnel Committee,” formed as part of Operation Chicano, had more ambitious plans.

According to plans drawn up by chair Lou Garcia, the new board would respond to a broader array of objectives. In his new conception, only a “core group” of members needed to be actively involved in MALDEF’s “program and policy decisions” and provide regular advice to the general counsel, a role most of the current membership already played (L. Garcia 1970a).

(This core would largely have to remain Mexican American, he assumed.) Beyond the core membership, however, he identified three other categories of members MALDEF should target.

This included “prestige individuals,” “prominent persons in legal professions,” and “community and organization participants.” Garcia argued that the primary purpose of prestige members

159 would be to bring respect and attention to Mexican Americans while enhancing the organization’s “legitimacy” in the new areas the group “needed to penetrate” and would not have to be active in the organization. Their presence on the board was “most important with respect to

MALDEF’s fund raising efforts” because of their ability to attract donors.

Meanwhile, Garcia suggested “prominent members of the legal profession” might serve a similar role for the organization as “prestige persons” since they too would validate MALDEF’s reputation and credibility, particularly in trying to sell itself as a worthy charitable operation.

However, they would hopefully also serve an important advisory role, helping bring MALDEF more in line with the standards of the field and providing other counsel for its litigation efforts.

The final category, community organization participants, represented an attempt to bring other

Mexican American activists onto the board, especially non-lawyers, in order to enhance the organization’s legitimacy among its own broad base. Though as Garcia noted, this needed to be done carefully to avoid bringing on critics: “Care should be exercised by the Board in inviting persons in this category as they are not only not legally oriented but in many instances (almost

100% by my own experience) anti-attorney or against containing efforts to resolve social problems within a legal framework.”

This latter category had obvious roots in the sentiment that MALDEF’s primary failings were poor public relations within the community. The rationale, as Garcia explained it, was “to broaden, reinforce, and complement MALDEF with non-legal oriented community support.”

And he saw a broad range of potential persons to target, including “[n]ewspaper reporters or publishers, writers, union leaders, religious leaders, officers of organizations operating in similar area[s] of concern, professors, teachers, law students, professionals, etc.” Clearly, he thought that bringing on Mexican Americans with a more diverse background would help MALDEF achieve

160 the wider buy-in staff and board members thought the organization lacked. And selectively recruiting among individuals already sympathetic to its litigation focus would certainly further these perceptions by not challenging the current direction of the organization. The impulse, however, would prove problematic because it again meant elevating individuals who would not be entirely pliant to the broader aims Ford—and even MALDEF officials by this point—saw as essential to pursue. At the same time, they were trying to separate MALDEF from the public to give it a freer hand in professionalizing operations, the group’s leaders sought to bring more public voices into the organization.

Nonetheless, by the end of Operation Chicano, MALDEF had undergone a major transformation. Not only had it moved from parochial San Antonio to urban San Francisco, the entire character of its board had changed too. Again, several of the earlier board members were reputable lawyers who would eventually serve as federal judges. Nonetheless, it had significantly turned over its future direction to voices with little direct familiarity in Mexican American affairs. It added five prominent attorneys and law professors with experience in civil rights and poverty law, including Jerome Shestack, Dean Robert Yegge of the University of Denver,

Michael Sovern, Dean of Columbia Law, and Charles Ares, Dean of the University of Arizona.

In addition, they brought on several political figures with deep ties to the Kennedy and Johnson administrations and upper echelons of the Democratic Party. These notables included former

Johnson Attorney General, Ramsey Clark, Sargent Shriver assistant and Peace Corps director,

Bill Josephson, and the mayor of San Francisco, Joseph Alioto. Some cut across both designations, like former National Security Council deputy, EEOC chair, and future Army

Secretary, Clifford Alexander, and William Coleman Jr., who had been part of the Brown v

161 Board legal team, member of the Warren Commission and a future Transportation Secretary (see

Obledo 1971).

Moving Forward

Balancing the two objectives – outreach and professionalization, created problems during the two years Mario Obledo served as general counsel. MALDEF continued to suffer from ambiguity over its principal-agent relationship. Early on in the process of Operation Chicano,

MALDEF’s board developed structures intended to increase the flow of information from the grassroots, filtering public concerns upward to ensure that the organization remained on top of the pulse of its public. This effort had the encouragement of the Ford Foundation given its concerns that the leadership was too Texas-centric. Having equal board representation from the five Southwestern states of California, Texas, Arizona, New Mexico, and Colorado and asking those board representatives from each of the states to hold listening sessions was one way of ensuring the board itself would remain aware of the diversity of issues affecting the heterogeneous Mexican American population. Such an arrangement appeared all the more necessary given that the organization would continue having an established presence in only

California and Texas (Obledo 1970c, 25). While this would ensure that MALDEF leaders developed more sensitivity to the concerns of Mexican Americans outside those two states, however, it also reflected their understanding that MALDEF’s future depended on cultivating more public support, and thus establishing a visible presence throughout the rest of the

Southwest. They were still operating through a framework that understood Mexican Americans themselves as the primary principals of the organization.

162 On the other hand, the board and staff had learned the tough lesson that Ford reserved the right to withhold funding at any time. To the shocked audience in the March 1970 meeting with

Christopher Edley and other Ford officials when he claimed common law gave the foundation

“the power to cancel, reduce, suspend or not to review” the MALDEF grant when asked what would happen if board members voted to reject the recommendations (“MALDEF Board of

Directors Meeting Minutes, Washington, DC, March 13, 1970” 1970, 6). This effectively made

Ford’s concerns prior to those perceived as coming from the Mexican American public. The board and staff would have to be much more accommodating of Ford’s concerns particularly given the willingness of its officials to use their financial leverage.

This created an ambivalence in MALDEF’s operations for the immediate future. On the one hand, it would continue to pursue public engagement, putting their organization at risk of public criticism for which it had few means of deflecting. On the other, it would invest in conforming more to the standards Ford had in mind, trying to don the trappings of a professional civil rights litigation firm. This would perhaps lead the organization to take a big risk in an effort to establish its bona fides, ultimately falling short. Eager to punch above their weight class,

MALDEF would pursue several significant education cases all the way to the Supreme Court, including the infamous San Antonio v Rodriguez case over school financing and others involving language rights and bilingual education. Losses, especially in Rodriguez, set an enduring precedent showing just how much was at stake for Ford and other partners in civil rights litigation if MALDEF and its peer organizations failed.

Much of these tensions, however, also had to do with the ambiguities regarding

MALDEF’s financial future. Again, as Ford made clear, it did not intend to serve as MALDEF’s primary benefactor indefinitely. In the immediate years following the shake-up, an important

163 task for MALDEF was still to generate a funding strategy that would allow it to survive on its own. The split in its conception of its principals was echoed by the fact that it still believed it might target both those from Ford’s elite milieu, pursuing multiple foundation grants and large donations from major donors, and turn to Mexican American organizations for support. By the end of Obledo’s term, cut short in the wake of Rodriguez, it became clear that the funding game would rest entirely on the former, not the latter.

Professionalization

While Operation Chicano led to significant changes in the structure and leadership of

MALDEF, it still left the group’s financial future in ambiguity. Ford made no small issue of its desire for the organization to find its own financing, making clear that Tijerina’s failings on this front too played a role in their restructuring demands. The creation of a more professionalized board, with elites from the overlapping worlds of philanthropy, government, and legal activism was intended to help in this regard for the reasons stated earlier. It would bring Mexican

Americans generally, and MALDEF specifically, more attention in those very same elite circles and bring its programs more in line with the professional norms in the field. But such hopes hardly resembled a clear fundraising strategy. Yet under Obledo’s leadership from 1970 to 1973, these ephemeral expectations did not receive much fleshing out.

Instead, much of the strategy revolved around a commitment to raise MALDEF’s profile with these very same elites and with the Mexican American public by asserting a more prominent and forceful role in courts at the national level. Through continued efforts to perform outreach with the community and insert itself into major national litigation, MALDEF leaders sought to make a name for themselves that would redound to their fundraising efforts. The

164 challenge for the organization is that in continuing to focus on building its image with the

Mexican American public, it exposed the group to similar legitimacy controversies that precipitated Tijerina’s dismissal and ensured ongoing pushback from Ford monitors (Brest

1971c, 1972; Mahoney 1973a; Wolinsky 1971). As problematic as this was, however, it paled to the new threat created by MALDEF’s mutual pursuit of elite opinion and Mexican American opinion. In trying to burnish MALDEF’s image with both constituencies for the sake of publicity and fundraising objectives, Obledo began an overambitious litigation agenda that promised major policy victories but carried significant risks for the organization. When these cases failed or yielded problematic outcomes, Obledo ultimately left the organization. Nonetheless, in aiming to expand MALDEF’s role and moving it towards the professional expectations set forth by the

Ford Foundation, he nonetheless left it in strong shape for his successor, Vilma Martinez, to diversify its elite patronage and finally bring it closer into orbit with the expectations of its true principals: a new network of government and philanthropic funders.

Building MALDEF’s Public Image: Addressing the Fundraising Challenge

When Mario Obledo assumed the leadership of MALDEF in the spring of 1970, he inherited a lagging fundraising operation from Tijerina to go along with general financial disarray. Under Tijerina, the office never developed consistent accounting or development departments and Tijerina managed most of these duties in collaboration with contractors.33

Importantly, Tijerina contracted out fundraising services to consultants at Harold Oram, Inc. on

33 This was not necessarily intentional on Tijerina’s part. He made a few hires over his tenure but none stayed with the organization for long. A fundraiser, Albert Fuentes, was hired but quit soon after his training (Tijerina 1970a). Hiring a full-time accountant and development officer became a top priority during Obledo’s transition to director, but the pattern continued. His first accountant, Andres Maldonado, would leave quickly too (“Minutes of the Meeting of MALDEF Executive Committee, San Francisco, October 31, 1970” 1970). 165 the advice of Jack Greenberg. The group, led by direct mail pioneer and liberal activist, Harold

Oram, had worked with the NAACP LDF since the 1940s and Greenberg gave him immense credit for the organization’s growth (Greenberg 1994, 21). He trusted them to similarly help

MALDEF raise its own financing.

However, despite the pedigree of Oram Inc., the overall effort produced meager results.

No doubt, having to deal directly with the organization’s preoccupied executive director did not help the situation. But Oram was also hamstrung by the inherent challenge MALDEF presented to its typical fundraising approach. Most obviously, the relative anonymity of the organization and inexperience of its leadership combined to make generic mass appeal—when and if they got off the ground—less reliable than they were for a more prominent organization like the NAACP

LDF. To rectify this, they often tried to rely on external celebrity endorsements which did not always prove ideal. For example, they suffered a notable fiasco in their first mailing campaign which attempted to capitalize on MALDEF’s recent collaboration with Cesar Chavez’s popular

United Farm Workers movement. Not only were they eager to have someone of Chavez’s stature as the face of their appeal, they initially planned to publicize the fact that MALDEF gave his

National Farm Worker Service Center a sub-grant to provide legal services to fieldworkers.

However, after printing the mailings, MALDEF staff and board members collectively decided to shelve the campaign, realizing that this might backfire by encouraging other Mexican American activists to demand sub-grants as well, provoking further jealousies and controversies from activists that were already undermining the organization’s public image. In the end, the sub-grant was left out of the appeal, but they continued to include Chavez as the endorser. Yet this too created drama when Chavez and other UFW officials became concerned that it would cut into their own fundraising efforts and sent an angry letter protesting the use of his endorsement

166 despite an earlier agreement (Drake 1970). Oram and MALDEF still followed through on sending the letter as planned but the episode revealed some of the challenges the group faced as a result of its newness. It lacked the public recognition to market itself independently and had not anticipated the inherent complications of leaning on other activists to build credibility.

Eventually, group leaders would choose less potentially compromised figures like former attorney general Ramsey Clark and football star Jim Plunkett (“Minutes of the Meeting of the

Executive Committee of the Mexican American Legal Defense and Educational Fund - 1971-12-

11” 1971) to market the group, individuals who were not potential competitors for charitable funds and influence.34

The other challenge that Oram faced in its direct mail marketing techniques had to do with the aforementioned fact that MALDEF, and more importantly, Mexican Americans, had limited visibility outside the Southwest. Tijerina would market Oram’s credentials to the board upon hiring the firm at Jack Greenberg’s recommendation given their successful fundraising record with the NAACP LDF. As Oram officials themselves explained in their first annual report in January 1970, work with MALDEF would be far more complicated. “The Oram firm had worked for 25 years with the NAACP Legal Defense Fund,” they noted, but “undertook this campaign [with MALDEF] fully aware that an entirely new supporting constituency had to be developed” (Oram 1970, 1). The NAACP LDF had a fundraising constituency given its national prominence and its origins as part of a membership-based organization. MALDEF enjoyed neither of these luxuries yet. And indeed, its first mailing campaign beginning in early 1970 through the rest of the year that grossed only $60,000.

34 Aside from Plunkett’s football celebrity, his Mexican American ancestry also played into their advertising. 167 In addition to the direct mail campaign to households, Oram also made efforts to attract funding from foundations and corporations using similar generic appeals. None of these campaigns had any success, however. They sent requests to 504 foundations and to 2,200 million dollar corporations in Texas expressly requesting support for their law school scholarship program, assuming this would generate more sympathy than general expenses or litigation efforts (Obledo 1971, 133).35 Yet, as Obledo reported in his annual report to the board at the end of 1970, the combined fundraising efforts—largely designed under his predecessor—yielded only $63,000 in revenue total, with direct mail constituting the bulk of that figure.36 It was clear that the lack of familiarity with MALDEF impacted the returns they saw, with Obledo justifying the meager results as serving a useful advertising purpose. Nonetheless, it was hardly surprising when the board decided in June 1970 to terminate the contract with Oram during the same meetings that the changes pursued under Operation Chicano were ratified, though they would continue to pursue similar efforts in-house (“Minutes of Directors Meeting, Las Vegas, June 12-

13, 1970” 1970, Resolution 16).37

But if they could not depend on direct mail appeals as a reliable funding alternative, they did not end its use. In fact, MALDEF continued to use similar campaigns throughout the rest of

Obledo’s tenure. It provided supplemental income, but more importantly, both Obledo and members of the board saw it as key to a broader campaign for raising MALDEF’s profile. Again,

35 The corporate campaign mailings were entirely funded by the LTV Aerospace Corporation in Texas, whose CEO signed the mailings sent to peer organizations, at least sparing MALDEF from this unsuccessful campaign’s expense. 36 Of the $63,000, $60,000 came from the direct mail campaign while only $3,000 came from the foundation appeals. They reported no gifts from the corporate gifts appeal. 37 Ironically, Harold Oram had written a telegram to MALDEF officials explaining that the turbulence caused by Ford’s actions, which got coverage in the New York Times, was hurting their campaign. Concern about MALDEF’s future stability, he noted, was also compounding foundation fears about supporting “social action” groups in the wake of the 1969 Tax Reform Act. 168 one of the lessons of the Ford ultimatum had been that MALDEF needed to do a better job of attracting the attention of elites in government, philanthropy, and legal activism. But the other take-away was that they had failed to properly promote MALDEF among the Mexican American public at large. By doing more outreach and being proactive in convincing the Mexican

American public about the importance of the litigation work they were performing, they might dampen the criticism that had come in from various quarters of the community and precipitated the move to San Francisco. More than simply diversify funding resources, they needed to sell the public and elites on the importance of MALDEF. In doing so, this would presumably result in greater responsiveness to their appeals efforts. In other words, being able to perform better in their fundraising campaigns, they needed to build broader public recognition.

This led to multiple ad hoc efforts to elevate MALDEF’s presence nationally and increase its footprint locally. As such, the value of direct mail campaigns themselves had as much to do with getting MALDEF broader name recognition as with the amount of revenue raised. Thus, in his annual board report for 1970, Obledo reminded the board to keep “in mind that the purpose of direct mail is not only to raise money, but also to build one's constituency,” in defending their utility (Obledo 1971, 34).

The ongoing mailing campaigns, however, fit within a broader publicity strategy aimed at raising awareness of MALDEF’s work and bringing in donations that the group conducted during Obledo’s tenure. In 1971, for example, they began an advertising campaign in magazines, using the Mexican American football stars Jim Plunkett and Joe Kapp38 to frame requests for donations. Likewise, staff ramped up production of the office newsletter in late 1970, turning it

38 Kapp was featured on the cover of the cover of Sports Illustrated (7/20/1970) as “The Toughest Chicano.” 169 from a simple, type-written roundup of litigation activity on regular office letterhead, to a professional bulletin with multiple stories and photographs. The old version had been largely intended for referral attorneys conducting litigation on MALDEF’s behalf, keeping them apprised of relevant information. The new version, however, targeted a broader audience of both lawyers and the public at large. It offered more general accounts of the organization’s litigation, its advocacy work, and legal or policy developments, stressing the potential import of otherwise technical subjects. Additionally, if profiled various board and staff members in each issue to help readers get to know the organization. This served a useful advertising purpose and addressed internal concerns that MALDEF had not done enough to publicize its efforts to generate greater popular support. Of course, it also served a useful fundraising purpose as well by including a donation form for those interested in offering financial support. As staff attorney Miguel Mendez explained to the executive committee in December 1971, the newsletter was “essentially a fund raising device, […] containing extensive information on our litigation and other cases that are significant in the civil rights field,” though its circulation was one tenth the size of the mailing lists used in direct mail campaigns (“Minutes of the Meeting of the Executive Committee of the

Mexican American Legal Defense and Educational Fund - 1971-12-11” 1971, 19).39

The newsletter served a narrower objective as well, one that complemented a variety of other efforts to monopolize all aspects of Chicano law. While not necessarily targeted to lawyers, they nonetheless hoped for it to serve as a repository of developments in litigation and policy affecting Mexican Americans, thereby carving out a unique niche for MALDEF as a resource. At the same time, they began efforts to develop a brief bank that attorneys could turn to for

39 It is notable that despite being a staff attorney, Mendez was speaking here in his capacity as office administrator and development coordinator, having been pressed into service in these roles because of the aforementioned staffing issues. 170 assistance with Mexican American clients, again portraying this as something that could elevate

MALDEF’s profile in legal circles and beyond (“Minutes of the Meeting of the Executive

Committee of the Mexican American Legal Defense and Educational Fund - 1971-12-11” 1971).

Even more directly, they hoped to assert a role for themselves in law schools seeking out relationships with Mexican American law school societies. There were multiple reasons for their attempt to build a presence at law schools. One was the fact that Mexican American attorneys remained few and far between, especially attorneys willing to work in civil rights laws. Many of the referral attorneys they worked with were white and hiring Mexican American staff attorneys presented challenges from the early days of the organization, concerns which helped drive the creation of the law school scholarship program at the group’s founding. The other reason was the innate sense that law students represented an obvious and useful potential “constituency.” For leaders preoccupied with developing an enthusiastic base of support, law students were an obvious target. By 1971, the board created a permanent seat for a representative from the La

Raza National Law Student Association (LRNLSA) with hopes of being able to foster a stronger sense of commitment to MALDEF’s efforts and possibly bring more Mexican American lawyers into its fold.

Somewhat surprisingly, Obledo also sought to expand MALDEF’s footprint throughout the Southwestern states by opening more regional offices to complement the branches in San

Antonio and Los Angeles. Over the course of his tenure MALDEF opened sites in Denver (1971) and Albuquerque (1972), and a lobbying office in Washington DC (1973). In establishing offices in new regions of the country, Obledo appeared to be risking the same challenges that led to

Tijerina’s ouster, since regional offices almost certainly would bring a flood of residents from surrounding areas wanting MALDEF staff to provide legal aid assistance. But there were

171 multiple considerations encouraging Obledo in this direction, including from Ford Foundation officials. From the perspective of Ford and the Campbell evaluation team, one of the problems with MALDEF during the Tijerina years was the Texas-centric nature of the group’s concerns and that its scope of activities did not extend beyond the two major population centers of Texas and California. That the headquarters had been relocated to San Francisco did not resolve this concern, something MALDEF board members were acutely aware of in nonetheless proposing it as a site. Proving that the group was eager to support Mexican Americans in Arizona, Colorado, and New Mexico as well was of concern to Ford’s program officers, while MALDEF leaders like

Obledo also saw cultivating support from these states as also necessary to the group’s success and survival. Indeed, the fact that they did not have services in these states had started to become a liability as activists, particularly the law students whose support MALDEF wanted, started raising concerns that the group was not doing enough to help the public in their area.

Thus, investing in more branch offices would theoretically give MALDEF a broader base of support in the minds of Obledo and the board, and help satisfy some of the concerns expressed by Ford Foundation officials. Moreover, they did not detract from MALDEF’s larger commitment to impact litigation since each office operated quasi-independently. They received collaborative support from local institutions, especially universities, to advise, staff and oversee their work and approximately half their funding came from outside sources, reducing

MALDEF’s financial burden.

But most ambitiously of all, Obledo’s efforts to raise MALDEF’s profile could be seen in the high profile litigation he began to pursue which intended both to put the organization in greater contact with local constituencies and enhance its reputation within legal circles and others in elite foundation networks. Most of the cases MALDEF pursued in this era involved

172 education, including school finance and instructional language concerns, both of which were increasingly being touted as the new horizon of the civil rights struggle in a post-Brown era and a natural extension of desegregation efforts. Notably, many of the cases were initiated prior to

MALDEF’s involvement, meaning that the organization signed on late as co-counsel or sought to throw their support and reputation behind cases as amici as they began drawing significant attention.

In at least one of the cases, Rodriguez v. San Antonio, plaintiff’s attorneys had sought

MALDEF’s participation from the beginning but Tijerina refrained because of expected costs and competing pressures from other groups for assistance (Irons 1988, 285; Yudof and Morgan

1974, 391). But for Obledo, joining litigation like Rodriguez made sense given that it involved several families from San Antonio and had broad local support. Such efforts would help

MALDEF build credibility in the community and its advancement to the Supreme Court in 1973 also put it at the forefront of major, game-changing civil rights litigation.

Of course, Tijerina had long been sensitive to the public relations value of taking on prominent litigation. His failure to join on to Rodriguez and other important impact litigation efforts overlooks the controversial work that MALDEF did perform under his watch. But

MALDEF’s efforts to bring publicity and credibility to the organization were narrower in scope.

They included assistance with the high profile criminal defense cases of students and teachers arrested during a series of Los Angeles “walkouts,” including Sal Castro and Montezuma

Esparza, and of Chicano activists and UFW affiliates in various arson and public disturbance cases (M. T. García and Castro 2011; Obledo 1969a; Ortega 1969a, 1969b, Tijerina 1968b,

173 1969c).40 Tijerina and the board even lent support to activist Reies Lopez Tijerina (no relation) in a criminal case brought against him by the state of New Mexico. Lopez Tijerina had for years made controversial attempts to seize lands that he claimed belonged to Mexico under the terms of the Treaty of Guadalupe Hidalgo, the agreement signed to end the mid-nineteenth century war between the US and Mexico. His efforts led to episodes of violence between members of Lopez

Tijerina’s Alianza Federal and law enforcement and efforts to criminally prosecute him. By the time group members killed a law enforcement officer outside a court hearing against Lopez

Tijerina, he had already come to be seen as part of the larger Chicano activist struggle but lacked a legal defense. Though members of MALDEF’s board were conflicted about the merits of his cause, there was a sense that the organization should nonetheless represent him for its own credibility and image among the Mexican American public (Armendariz 1968). They even applied for grant money to support his defense, but ultimately only filed an amicus brief (Tijerina and Tijerina 1968).

But if these would (or would have) put MALDEF in a more public position, they were narrow criminal trials that would have brought attention but not satisfied the desire for lasting impact that the cause-lawyering community broadly valued. Obledo being both more interested in impact litigation and concerned with responding to Ford’s criticisms on this point led him to push the organization towards involvement in litigation that attracted both the attention of

Mexican American publics and legal elites to build its reputation among both audiences.

Tijerina’s cautiousness in this regard might have also been explained by the times. As Joe Ortega would write in a memo offering his vision for the direction of the organization:

40 MALDEF would also hire full-time one of the defense attorneys already working on the walk-out cases, the radical, flamboyant Oscar Acosta who would later famously be depicted in Hunter S. Thompson’s roman à clef, Fear and Loathing in Las Vegas, as Dr. Gonzo, the lawyer and companion of the book’s protagonist. 174 MALDEF in 1969 was different than it is or should be in 1974 and 1975, because both external and internal conditions have changed. In 1969, the Mexican American (‘Raza’ and ‘Chicano’ were just beginning to emerge as acceptable terms) community was taking part in demonstrations and "activism" that was occurring throughout the world. […]These activities have diminished. Also, thanks in part to MALDEF's scholarship program, the number of Raza or Chicano attorneys now practicing who can and do represent some of these matters has increased drastically. MALDEF, as an attorney on the spot, is not as necessary as it was formerly (Ortega 1974).

Be that as it may, it also reflected both Obledo’s and the board’s assumption that the group’s financial survival required courting two audiences and raising the group’s prominence with both. The new direction in litigation and broader efforts to increase MALDEF’s footprint in areas that might have felt neglected by the group reflected these assumptions. But they ultimately fell short in achieving organizational stability and would require another course correction.

The Limitations

The main challenge of the new organizational strategy of marketing MALDEF to the broad Mexican American public while still responding to the expectations of Ford officials and its broader networks, is that the organization continued to put itself at risk of being unable to satisfy either constituency. By the end of his tenure, he had not put the group on better financial footing, resolving Ford’s hopes of becoming a more diversified and self-financed organization.

But neither had he been able to build broad public support, building a coalition of “members” willing to respond to mailing appeals and the wider cause it aspired to serve. In fact, its efforts just as often continued to attract public criticism.

MALDEF’s efforts to be the legal resource for Mexican American law, for example, generated mostly contention. Concerned that too many Mexican American law students did not

175 go into civil rights issues and went on to practice in other areas, they thought it important to advertise and build connections with organizations like the Mexican American Bar and the major

Mexican American law student group, La Raza National Law Student Association (LRNLSA).

But Mexican American law students influenced by the Chicano movement (or at least the ones involved in LRNLSA) turned out to be far more radical in their political orientation than Obledo and the board. Through much of the early 1970s, the group began making demands on MALDEF for funds to cover the costs of their annual conferences and travel for students (Baca 1971; Casso

1970; “Minutes of the Meeting of the Executive Committee of the Mexican American Legal

Defense and Educational Fund - 1971-12-11” 1971, 21). They also demanded control over

MALDEF’s scholarship program, insisting that their members be put on MALDEF’s payroll to coordinate with LRNLSA’s leadership to decide which law students “deserved” funding

(Armendariz 1970a, 1970b; Casso 1970; L. Garcia 1970b; Ibañez 1970c; La Raza National Law

Student Association 1970). They also managed to involve MALDEF in a major standoff with the

University of San Francisco over its law school admissions, writing the president on MALDEF letterhead and invoking MALDEF’s authority in these efforts from which MALDEF leaders had to then extricate themselves, not wanting to be associated with the hardline demands of the students (Jonsen 1971).

Indeed, it was also the law students who put pressure on MALDEF to support new regional offices, which to be sure, Obledo supported regardless for the reasons stated above. But students nonetheless began an active campaign adding to the pressures to establish clinics, particularly in Denver, that would support the limited efforts they had attempted to start and which they believed were owed MALDEF’s financial backing (“Minutes of the Meeting of the

176 Executive Committee of the Mexican American Legal Defense and Educational Fund - 1971-01-

23” 1971).

The legal legacy was perhaps even more problematic. Feeling a need to be part of these prominent cases to build credibility with local publics and to enhance their image with Ford’s networks, they put the potential rewards of their involvement ahead of the potential risks. This calculation backfired. San Antonio’s challenge of an appeals court review panel finding in favor of Rodriguez, et al. led to an overrule by the US Supreme Court. But the court’s decision was not only a defeat for the San Antonio parents. The opinion wound up setting a negative precedent for future efforts to compel equal funding levels across state school districts, finding that “education is not a right” and declaring that funding differences in education across districts did not merit strict scrutiny for racial or economic discrimination.

Meanwhile, MALDEF’s involvement as an amici in 1972 in Lau v. Nichols (1974), an important bilingual education case, set it on a course that ultimately led to a major clash with

NAACP LDF and African American desegregation efforts. In the wake of the Lau decision in which the court’s decision made notable reference to MALDEF’s brief, it was brought in as an intervenor in Keyes v. School District Number 1, a Denver desegregation case led by the NAACP

LDF. Since the district had many more Mexican American students than African Americans,

MALDEF was brought into the case ultimately taking the opposite position that Mexican

American legal activists had taken for the previous 50 years, arguing that desegregation efforts could not conflict with the needs of language minority students to be taught in their own language. As scholar Guadalupe San Miguel has argued, this ironically left MALDEF in the position of arguing for the separation of Mexican American students so that they could receive

177 separate specialized educational services, and undermined the NAACP LDF’s position (San

Miguel 2005).

By 1973 many of the legitimacy challenges that threatened MALDEF under Tijerina’s tenure remained. The ongoing insistence of Obledo and others that MALDEF maintain a physical presence in Mexican American areas continued to leave the organization exposed to potentially harmful controversies and to unnecessary dilemmas over whether to satisfy the local

Mexican American public or Ford officials. MALDEF’s public exposure encouraged more demands on its services from members of the public and other organizations, demands that, again, could not be rejected without risking outcry that the group was failing to address the concerns of the Mexican American “community.” As a result, MALDEF’s dockets were still weighed down by police abuse cases and other private litigation to the ongoing criticism of Ford monitors (Brest 1971c, 1972, Mahoney 1973a, 1973b).

At the same time, its attempts to court public support failed to bring the expected benefits. MALDEF was not in a better position to rely on public donations for its survival.

Contributions were not generally doing better than they had been. Neither did its attempts to raise its profile bring in more contributions from foundations. This left the organization overwhelmingly dependent on Ford for financing. In 1972, it had revenues of $776,783, fully

$415,000 of which came from Ford. It had only raised $13,850 from a series of corporate appeals, and approximately $74,000 from individual donors via direct mail appeals as well as its newsletter and magazine ads. It collected $144,000 from its contract with the EEOC for Title VII enforcement, but this money largely continued to fund its separate Title VII programs with relatively little going to the organization’s operating expenses (Barragan 1973).

178 This imbalance was not necessarily a problem as long as they could continue to count on

Ford’s support, which Obledo and his finance team largely assumed would be the case until a series of conversations in 1973 with Leonard Ryan and Christopher Edley, their program officers, who made few firm commitments about ongoing funding. In fact, they explained that the foundation as a whole was beginning to transition to a system that would mostly offer only one-year grants with possible annual renewals, and given the poor economy, would be reducing amounts given to most grantees (Mendez 1972). Ultimately, Ford did renew its grant to

MALDEF for an additional two years but at a lower rate. Moreover, foundation officials made clear that any future grants would be at even lower amounts. Suddenly, MALDEF was about to be deeply under budget with no obvious source of revenue to fill the gaps. Moreover, the economic downturn affecting Ford meant foundations everywhere were tightening their belts.

In the spring of 1973 in the midst of this looming crisis, Obledo announced his intention to resign and return to San Antonio. It has been reported elsewhere that his departure had to do with the loss in the Rodriguez case (K. O’Connor and Epstein 1984, 250). Nonetheless, his decision, which he discussed over a series of executive committee meetings before being announced at a general board meeting that April, clearly came as a shock to everyone and despite the warning given to the executive committee, it left them without a plan as well.

Fortunately, there was an obvious candidate to take his place. That person was Vilma

Martinez, a 1967 Columbia Law graduate then serving as chair of the board’s finance and fundraising committee. After graduating, Vilma immediately began her career at the NAACP

LDF and in fact, had been a prime point person on its effort to draft the original MALDEF grant proposal to the Ford Foundation in 1967 and had been involved with MALDEF from the start.

Though not joining as a board member until 1970, she had been intimately involved with it and

179 had become a proactive presence on the fundraising committee, foreseeing and undertaking significant initiatives to address the looming budget deficit. After interviewing a few candidates, she was appointed that summer.

The Future

Although Martinez had been involved with MALDEF from the very beginning, her ascension to the presidency of the organization represented a major transition point. While originally from San Antonio, she, unlike Tijerina and Obledo, did not stay in Texas for her education. She received her law degree from an Ivy League law school, one that was deeply affiliated with the NAACP LDF and the emergent push to train lawyers in using law to pursue social good. Additionally, her early career was spent with the legendary NAACP LDF where she became intimately familiar with the model of a civil rights litigation firm MALDEF was supposed to emulate. In other words, she had grown up within the confines of and trained in the practice of civil rights law, and not a latecomer to the field. And perhaps just as importantly, she was not part of the old school LULAC and American GI Forum networks that the original board and leadership came out of. She did not have the political baggage they had or feel the same constraints since she remained somewhat distant from the broader Mexican American political scene.

In trying to run MALDEF, there were of course benefits to this independence from the

Mexican American political scene in Texas and to having been politically socialized at an elite east coast law school. She had much more exposure to east coast norms regarding legal and political advocacy as well as of foundations and other potential donors than either Obledo or

Tijerina. She also was not compromised by longer-standing political commitments or loyalties to

180 particular Mexican American factions that had prompted complaints about regional bias and led to many of the controversies that dogged MALDEF in the late 1960s. But these same qualities also suggested a level of detachment from Mexican Americans and the local political issues that earlier generations of citizens and activists debated internally and struggled to address. She operated from a particularly wide social distance from the constituencies MALDEF was claiming to represent. Under her term, public outreach and securing broad consent for MALDEF’s work took a backseat to developing clear programs and agendas at MALDEF, demonstrating an explicit commitment to “bureaucratization” and “standardization” of MALDEF’s operating procedures.

This had as much to do with simplifying MALDEF’s structure and avoiding redundancies, a concern that had begun to gain wider discussion as MALDEF expanded during

Obledo’s tenure. It was informed by pragmatic fundraising considerations as well. Early in her tenure on the Finance and Fundraising Committee, she had been pushing the view that foundations were often unwilling to give general funds to an organization or funds that would supplement pre-existing programs. In announcing her committee’s strategy at an Executive

Committee meeting in December 1971, she explained “I have become convinced that the way to interest foundations is to offer them the opportunity to fund a separate component” (“Minutes of the Meeting of the Executive Committee of the Mexican American Legal Defense and

Educational Fund - 1971-12-11” 1971, 26). In the fundraising campaigns begun under the guidance of Oram Inc., MALDEF made appeals to foundations for restricted money to go to what they assumed was the most sympathetic projects—scholarships for aspiring law school

181 students.41 Martinez instead suggested that foundations are more likely to want to own a piece of—and take credit for—discrete programs within the organization, particularly those that aligned with certain issue areas that a given foundation emphasizes. In becoming MALDEF’s president in 1973, she began to more fully implement that vision, developing discrete programs within the organization that had the promise of getting independent funding.

The Fiscal Crisis of 1973 and 1974

As early as 1971, Martinez began to articulate a strategy of moving towards a more bureaucratized structure with separately funded programs created to attract foundation financing.

But the strong movement in this direction upon assuming the presidency of MALDEF had much to do with the financial crisis she inherited in taking the reins. By the summer of 1973, it was clear that MALDEF would be deeply in the red by the end of the fiscal year the following April.

It could not have been worse timing for Martinez, who replaced Obledo in October of 1973 as crisis soon subsumed the organization. Much of her first year as leader of the organization was spent trying to find ways to clear MALDEF’s debts and keeping its operations going. In facing down the imminent catastrophe, Martinez attempted multiple methods of supplementing organizational revenues, including alternatives that, had they been fruitful, might have pushed

MALDEF into a different funding model. Instead, she led MALDEF in a more stable direction of developing self-funded programs and dropping those that could not obtain independent financing. Though it would still engage in general fundraising through old strategies of direct

41 Might expand here, or earlier, some of the specific efforts beyond just direct mail: e.g., launch of MALDEF’s Bay Area Equal Opportunities-in-Law Project. “a cooperative effort between major San Francisco Bay Area corporations, foundations and universities to assist Mexican Americans in the pursuit of legal education” (“Minutes of the MALDEF Executive Committee Meeting” 1972, 6). 182 mail campaigns supplemented by banquets, it began developing stronger relationships with major foundations and working with them collaboratively to structure MALDEF’s programs.

Essentially, between the 1972-73 and 1973-74 fiscal years, MALDEF’s adopted budget grew by nearly $300,000. Despite this planned growth, however, MALDEF finished their fiscal year in April 1973 with a deficit of approximately $55,000. By the August executive committee meeting, they had closed only $15,000 of the difference in the previous year’s budget and were on track to cover only $600,000 of the nearly $900,000 called for in the current year’s budget

(“Minutes, MALDEF Executive Committee Meeting, August 11, 1973” 1973, 4). By the time the fiscal year ended in April 1974, the deficit had shrunk to an estimated $125,000, which nonetheless presented a major burden, particularly after projecting forward to April 1975 when officials expected another $80,000 budget deficit. As a “special budget committee” set up by the board during the annual meeting announced in a staff memo sent to the entire organization that would leave MALDEF with a total expected deficit of $205,000 (Special Budget Committee of the Executive Committee 1974).

As the memo explained, MALDEF’s lack of unrestricted funds loomed large in causing the crisis and would prevent the organization from spending down its debts. The intermittent fundraising appeals pursued during Obledo’s tenure had not contributed much in the way of extra unrestricted funding beyond what it received from the Ford Foundation, while most other grants it had accumulated were restricted to particular programs and could not be used to forestall potential insolvency. A follow-up memo by board chair Richard Ibañez to the entire staff clarified the situation:

MALDEF has been successful in raising funds from other sources, for its restricted budget which now almost equals its unrestricted budget. The unrestricted budget however

183 is for practical purposes dependent upon the Ford Foundation. This being so, new source of funds must be found for the unrestricted budget (Ibañez 1974, 2).42

If they could not find new sources soon, the consequences would be dire. “MALDEF will run out of cash for salaries and other expenses,” he warned. “This can occur in February, 1975, and it follows that there will be insufficient funds to meet expenses for March or April, 1975”

(Ibañez 1974, 5).

Of course, Martinez, the board, and the special budget committee had already been discussing a path forward for months before these memos went out to staff in the summer of

1974. The thrust of the proposed solutions focused on procuring individual gifts and would put in motion a major fundraising effort requiring the full participation of all staff and board members.

“MALDEF lacks unrestricted monies,” Martinez explained at the annual board meeting back in

April, “therefore it is very important to try to improve the financial support of MALDEF by individual donors” (“Minutes of the Mexican American Legal Defense and Educational Fund

Board of Directors Annual Meeting, April 19-20, 1974” 1974, 3). Thus, to save the organization, the special budget committee announced that in addition to a hiring freeze:

Board members and staff in the regional offices, as well as those in the National Office will have fund-raising responsibilities. The goals will be to try to raise $20,000 to $25,000 in Colorado, New Mexico, Southern California and Texas per office by January 31, 1975. Double these amounts must be raised in 1975 if regional offices are to continue. If these fund raising efforts are not successful then, Denver, Los Angeles and Albuquerque should close after April 30th (Special Budget Committee of the Executive Committee 1974).

42 In fact, Ford’s grants were also decreasing during this time, which contributed to the strain. In his annual board report from April 1974, development officer Jim Perez explained that although they requested $667,350 to cover their 1974-75 fiscal year, Ford responded with a two-year award for $825,000 total, for an annual amount of $412,500 (Perez 1974, 8). 184 Aware that most of her professional staff now being asked to participate in fundraising would have no clue on how to begin, she disseminated a memo to each of the offices with some pointers and a list of potential donation sources for regional office directors to target.

I would like to emphasize that we are aware that this is a large undertaking as well as one with which you are not familiar, and we therefore want to provide some guidelines and suggestions which hopefully will help you in formulating your personal approach to raising this money. As lawyers you are not prepared ordinarily for fund raising tactics, but I can assure that with proper preparation the actual work is such that I'm confident you will grasp the fundamentals. Generally speaking, these are the sources that comprise potential donations: 1. Foundations 2. Corporations 3. Individuals 4. Special Events (Luncheons, Dinners, Benefits, etc.) 5. Local Professionals (in our case, attorneys) 6. Local Committees or Organizations 7. MALDEF Board Members 8. Public Service Announcements (V. Martinez 1974b, 1–2)

In the meantime, Martinez herself and her finance team began their own efforts to shore up the budget. Some of this involved communication with foundations as they held out hope for a large gift that might make a sizable dent in the deficit. However, their expectations were that survival would depend on individual donations, given a rash of announcements about foundation cutbacks due to the bad economy as well as their overall sense that foundations were unlikely to offer non-restricted funding. Thus, they focused on ramping up direct mail efforts as well as helping organize fundraising dinners and other parties in the San Francisco area (Perez and Hynd

1975). One of the more concentrated efforts, however, involved plying the major membership associations like LULAC, the GI Forum, and others that she and other MALDEF leaders considered their “base.” Throughout the period, Martinez and the fundraising staff would report back on discussions with local chapter and national leaders of these groups, having succeeded in

185 getting resolutions passed calling on members to support MALDEF, taking up special collections at meetings, or adding an additional option to support MALDEF on their membership renewal forms (V. Martinez 1974c; Perez 1975). In summarizing these efforts during the 1974-5 fiscal year, the Development Department explained some of their rationales:

We likewise sought the support of Chicanos by soliciting contributions through appeals to various Chicano organizations. We believed by contacting Chicanos through such organizations as the GI Forum, the League of United Latin American Citizens (LULAC), specialized groups such as members of the Associations of Mexican American Educators in California and IMAGE, comprised of Chicanos employed in public service we would be able to contact several persons through single contacts. Due to the special nature of the organizations we knew we were contacting those Chicanos who had a professional interest in the very issues which MALDEF was addressing (Perez and Hynd 1975, 1–2).

The irony was that MALDEF had not had a direct relationship with the members of these organizations. It had joined in litigation with LULAC, the GI Forum, and the Association of

Mexican American Educators (AMAE) over the years and been pressured to provide legal services on behalf of some of their members or leaders. Yet, these cases were often undertaken out of an implicit concern about maintaining organizational legitimacy or the attention their participation might generate. They might have hoped for the members of these groups to donate to MALDEF and sign up as recurring contributors, but they did not reach out directly and try to mobilize support. By the crisis of 1974, however, desperation pushed Martinez to directly court their support and even establish dual-membership arrangements, as well as consider becoming a jointly sponsored legal defense project of the AMAE, LULAC, and the GI Forum. Regarding the latter proposal, a special AMAE study committee approved of such an arrangement in principle, but the discussions did not result in any such arrangement (Hernandez 1974; V. Martinez 1974a).

186 By the time the results of the previous year’s efforts were described by the Development

Department for the April 1975 board meeting, they could trace only approximately $16,450 in contributions from the AMAE, LULAC, and the Los Angeles City Employees Chicano

Association (LACECA), a total padded from $800 received by LULAC at a dinner fundraiser.

For the year, they managed to raise $32,000 from corporate gifts, $62,500 from direct mail campaigns and separate appeals to specialized lists of potential donors, and $20,000 from their various events (Perez and Hynd 1975, 9). They indicated an ongoing strategy of reaching out to these organizations and getting their members to donate to MALDEF for the next fiscal year, but these contributions continued to lag as restricted funds continued to make up the bulk of their revenue. As new development coordinator Jane Couch announced in the 1976 board meeting,

MALDEF raised $1,089,402 during the previous fiscal year, 56.3% of which was program specific and 43.7% of which were unrestricted funds (“Minutes: Mexican American Legal

Defense and Educational Fund Board of Directors Annual Meeting, 1976” 1976, 30). Of the general funds, Ford was the overwhelming source, contributing approximately $394,000 in general money. Only $82,270 would come from non-Ford funding sources (Hernandez-Camara

1976).

The mediocre revenues from unrestricted donations fundamentally shifted MALDEF’s attitudes towards its operations. Martinez foreshadowed this new direction at the April 1974 board meeting where concerns about budget shortfalls finally erupted into a recognized “crisis.”

She declared that her strategy to secure MALDEF’s stability “would include building up of the

National [San Francisco] Office, making the regional offices self-funding, and the careful control of docket and other administrative work,” and “proposed to seek funding on a project by project basis” (“Minutes of the Mexican American Legal Defense and Educational Fund Board of

187 Directors Annual Meeting, April 19-20, 1974” 1974, 3). Indeed, by the summer of 1974, she seemed comfortable with the idea of letting MALDEF’s regional offices close if they could not sustain their own financing even though she was receiving appeals from locals, including LA

Congress-member Ed Roybal to keep the LA office open (Roybal 1974a, 1974b). Of course, by this time, several of the offices, notably, the Los Angeles office, effectively ceased operations as the directors and staff quit rather than add fundraising to their already overburdened list of litigation responsibilities, leaving the offices without staff (V. Martinez 1974c, 1974d). The LA office maintained its EEOC litigation, which it had a direct grant for, but outside of this, there were no lawyers to take on any other cases.

The development department encouraged this shift in direction as well, encouraging

Martinez to focus less on general funds moving forward and more on program-targeted funds. As director Jim Perez advised in a memo that summer:

It is the feeling of the fund raising department and the General Counsel that the most expedient method of off-setting our working deficit is to “parcel” MALDEF’s needs on a project basis. Our “needs” include funds for educational grants, additional funds to accommodate extensive education litigation, funds to pursue special localized problems such as land and water rights in New Mexico--or combat the peculiar problems in the lower Rio Grande Valley in Texas--and, funds for development in the Bay Area of more intensive relations between MALDEF and the Chicano community. All of these needs, with the exception of educational grants can be assimilated into a project form that can be presented as such to a select number of potentially interested foundations. […] There are many benefits to MALDEF, direct and indirect, in attempting to raise money on a project basis—not the least of which is the fact that many foundations are actually seeking the opportunity to contribute this way. Presented in project form, for instance, the education litigation proposal accounts for support of staff lawyers, and support to MALDEF in the form of overhead adjustments and partial support of secretarial salaries. In this way the funding foundation is in fact supporting education litigation, since the staff attorneys will devote a great deal of time to this issue, but at the same time a certain portion of MALDEF’s general operating expenses will be offset (Perez and Barnett 1974, 1–2).

188 And indeed, moving forward, MALDEF began to focus on independently funded projects. That process had already begun with two separately-funded projects Martinez got off the ground early on in her tenure. These included a contract with the EEOC to conduct Title VII employment discrimination litigation, and a new Chicana Rights Project which received nearly all of its support through a separate Ford Foundation grant. Moreover, as the crisis deepened and spending cuts needed to be considered, Martinez made the decision mandating that branch offices become self-funding (nearly half their budgets had come from general support).

Meanwhile, she eventually adopted the development department’s suggestions above that litigation be subdivided into discrete program areas that could receive separate financing. By

1976, there were three: education litigation, employment litigation, and political access litigation

(“Minutes: Mexican American Legal Defense and Educational Fund Board of Directors Annual

Meeting, 1976” 1976, 4). By 1977, they would add a fourth litigation program—immigration law

(Baller 1977).

Perez’s replacement, Jane Couch, would continue to emphasize the importance of individual gifts as central to the organization but revenues from individuals never exceeded

$50,000 during the 1970s.43 While Ford’s general funds contributions continued shrinking in the ensuing years, they were not replaced by small donors but from banquets, smaller grants from other foundations, and corporate gifts.

Costs

43 In the minutes summary of the 1976 board meeting, Couch was described as saying “over the next several years, MALDEF will have to shift from a pattern of almost exclusive reliance upon foundation support to one sustained by an increasingly large group of large and small donors” (“Minutes: Mexican American Legal Defense and Educational Fund Board of Directors Annual Meeting, 1976” 1976, 4). 189 MALDEF’s adaptation to philanthropic norms by the mid- to late-1970s did not come without a price. The group would achieve a somewhat more stable fundraising method, relying primarily on restricted program funding with a smaller proportion of operational support from a mix of corporate and foundation donors as well as high-dollar events. But the interaction with its base would be even more attenuated. Rather than trying to elevate its profile within the Mexican

American public for their support—efforts that had backfired repeatedly—MALDEF’s outreach would serve as a means of treating its base as potential clients for its services. For example, by the mid-1970s, when it had officially begun its work for the EEOC, it began a series of public service announcements and advertising to “raise awareness” about workplace rights while encouraging members of the public to seek out their legal assistance.

More troublingly, the process of distancing from the public and from seeking its support for funding led MALDEF to begin privileging the judgments of staff and funding priorities of foundations from the concerns of the public. For example, the decision to start the Chicana

Rights Project broadly reflected the eagerness of the Ford Foundation to deal more proactively with women’s issues than either the organization or its base. Indeed, Martinez would use the

Chicana Rights Program as an example of how MALDEF needed to reorganize itself to adapt to the new funding situation that did not look favorably on providing general operating expenses.

The Chicana Rights Program, she noted, represented a self-contained project that could be pitched individually to foundations (“Minutes of the Mexican American Legal Defense and

Educational Fund Board of Directors Annual Meeting, April 19-20, 1974” 1974, 3). But this meant the development of programs that catered more to foundation demand than to public demand. Part of what made the program attractive to Ford officials was the opportunity to enhance its ongoing support of efforts to battle workplace discrimination but with more direct

190 attention on minority women. Thus, MALDEF’s proposal, generated after multiple discussions between Martinez and others with Susan Beresford and Esther Schacter at the Ford Foundation stressed ground-building efforts to compile a social science database of statistics on Chicanas and to convene a task force among various other minority advocacy groups to establish a clear advocacy agenda for minority women as a whole (“Chicana Rights Project Year End Report

(Proposed Outline)” 1975; V. Martinez 1975; Perez 1974, 6). But as staff were also aware, the entire project was fundamentally counter to the self-understanding of a largely traditional population and that making demands for equal treatment of Mexican American women would

“involve fundamental cultural change” (Vasquez 1975). And soon enough, its programs appeared to have more in common with the concerns of well-meaning elite progressives than the

Mexican American public at large. For example, at a time when Roe v. Wade was just being decided in the courts, abortion rights became an important plank in the Chicana Rights Project’s agendas despite whatever objections this might have provoked from the conservative Catholic constituency it claimed to be representing. Likewise, it chose to emphasize the bilingual needs of

Chicana prisoners in its first year, an issue that would have limited appeal for most Mexican

American women at the time.

Perhaps most stunning of all was the way in which immigration surged to the forefront of its advocacy work by the mid-1970s. As described in Chapter 3, it had not always been clear what the appropriate relationship was between the various constituent parts of what might conceivably be referred to as the Mexican American population. Internal distinctions between

Mexican-Americans (i.e., the native born), Mexican immigrants, Mexican migrant workers, and

Mexicans was always fraught. “Defining the circle of we” was a challenge that featured in some of the most contentious debates in the old-line membership organizations like LULAC and the

191 GI Forum. In fact, suspicions harbored by many members of these groups towards Mexican immigrants and concerns about the appropriate relationship between Mexican Americans and

Mexico bubbled up to the surface among members of MALDEF’s board in the organization’s early years. The decisions to host MALDEF’s annual board meeting in Mexico City in 1971 and again in 1974 represent just one of the challenges, sparking internal debates. As board member

Herman Sillas remarked in a letter of objection to his colleagues:

Those that have been in close contact with the activities of the Mexican-American Legal Defense Fund, recognize that we are constantly under attack by the Activists in the community who claim we are not doing enough for the Mexican community. I sincerely believe that we would only compound our problems with our relationship with the Mexican community once they became aware that the Board of Directors saw fit to fly to Mexico City to discuss the problems of the Mexican-American in the United States (Sillas 1971).

MALDEF’s constituency was not back in Mexico but in the US, and Sillas feared the recriminations that would result from the optics and the presumed extravagance of traveling so far for a meeting.

Similarly, Richard Nixon’s decision to appoint Ramona Bañuelos as Treasurer in 1971 sparked internal debate when, called on to endorse her appointment, San Antonio office director

Ed Idar objected in a long letter to board president Richard Ibañez explaining that he found her employment of “illegal immigrants” unconscionable. Idar, who almost twenty years earlier wrote a report for the American GI Forum and the Texas State Federation of Labor entitled “What

Price Wetbacks?” expressed similar labor concerns. As he told Ibañez, “Over the years I have seen personally the exploitation of illegal aliens by employers in the Rio Grande Valley of Texas and the adverse effects that said exploitation has had not only on the illegal aliens themselves but on our own Mexican-American citizens.” Besides, he added, “I might also point out that the

192 appointment of a Mexican-American as Treasurer in my opinion is at best only a ‘Phyrric’ gesture, a mere effort to ‘taparle el ojo al macho [distract from or hide other aggressions],’ for the powers of said office have little, if any, relevance to the serious socio, economic, educational and other problems besetting the Mexican-American” (Idar 1971).

Yet by distancing itself from a public constituency, MALDEF was freer to draw an expansive boundary around its community and patching over public debates that roiled its predecessors. This gave MALDEF leaders the opportunity to develop programs around issues that might draw more sympathy from funders and in more alignment with the orthodoxies of an increasingly liberal Democratic Party. Nonetheless, in making concerns like abortion rights and rights of the undocumented central to the group’s advocacy, MALDEF leaders were beginning to assert a new Mexican American agenda, one that no doubt would have proven contentious had members of the broader Mexican American public been asked their opinion. Having abandoned the desire to generate public awareness and support for their work, they no longer needed to worry about any potential backlash, however. Thus, as MALDEF entered the 1980s, its agenda could become thoroughly consumed by issues affecting the undocumented, a far cry from the concerns about discrimination and unequal opportunities for Mexican American citizens that drove the organization’s founders.

193 CHAPTER 6 CONCLUSIONS

MALDEF would move into the 1980s with a much different look from the previous decade. The board changes in the early 1970s led to the appointment of many new members from among top law schools and elite Washington circles with ties to the Johnson and Kennedy administrations and the Democratic Party. But it largely left the initial group of Mexican

American activists in place. By the end of the 1970s, however, the kind of parochial leaders active in local mass membership community and political organizations had faded away. The board became a prestige operation that recruited a mix of individuals from the professional corporate world or from top law firms, celebrities, and high profile political figures, and activists with roots in social services and academia.

The former two categories of members reflected the new fundraising imperatives of the organization, opening up connections to private and corporate philanthropies as well as other donor networks while potentially attracting more publicity for banquets and other donation drives while making substantial contributions themselves. Among others invited onto the board,

MALDEF recruited Norman Lear in 1979 and Rita Moreno in 1984. The latter category of directors reflected the new realities of post-1960s activism with its emphasis on developing and providing services, a shift heralded by MALDEF’s emergence itself. Their expertise and knowledge of policy could help guide and validate the organization’s advocacy programs, maintaining its image and status in liberal networks of the Democratic Party. Gone were the

Albert Peñas, Joe Bernals, and Pete Tijerinas whose status came from their local community

194 involvement even if they may not have had their own strong constituency bases. In were figures whose status came from their positions as professors and academic administrators active in

Chicano studies programs or as human services officials in the government and non-profit world.

Some of these developments were necessitated by the economic realities of the late 1970s as foundations cut back on giving in the midst of a recession. Forced to branch out again for financing, MALDEF found corporate appeals and large banquets an important alternative revenue source. But in contrast to organizational efforts in the early to mid-1970s to send letters that rarely went answered, they found a surer approach in recruiting board members from corporate offices which opened access to corporate giving departments. They also began giving corporate donors more publicity for their donations, thus the creation of the Anheuser-Busch

Internship program in 1980 (Couch 1980; Quevedo 1980). They could also reach out to other corporate offices and buy up tickets to banquets. The close corporate ties would even lead one board member, himself a corporate official, to ask whether the naming of MALDEF’s annual awardees had become quid-pro-quos for the highest donor (Quevedo 1981). An award to

Anheuser-Busch at a 1983 banquet also brought criticism from outside the organization since

Jesse Jackson’s Operation PUSH was holding a boycott against the corporation for its limited philanthropy (Galvan 1983).

Corporate donations and banquets often had one side benefit: unlike foundation money revenue from these sources was much more likely to go to unrestricted accounts. Yet despite relying increasingly on non-foundation sources of support by the 1980s, MALDEF’s pursuit of compartmentalized program development continued apace. The organization had fundamentally evolved into the professionalized operation that Ford sought. Though internally, staff and board members worried about group transitioning from a “small organization” into a top-heavy

195 bureaucracy by the 1980s, such a fate was unavoidable given its trajectory (Hurtado 1980). It was not suddenly going to develop an accessible bottom-up operation given the fundraising incentives and its ongoing reliance on professionalized advocacy tactics. Moreover, the transformation begun in the early 1970s was bearing more fruit in terms of tangible victories. By the early 1980s, it was on the cusp of major policy debates that would provide it national recognition. In 1982, for example, it achieved a major victory in Plyler v. Doe (1982), a case that established the right of undocumented students to receive a public education and struck down efforts in the state of Texas to refuse their enrollment. It would also become a major player throughout the 1980s as the Reagan administration and Congress pursued a major amnesty accord, resulting in the Immigration Reform and Control Act (IRCA) in 1986.

By this point, however, the organization itself, however, had largely lost touch with its own base. During the IRCA debates, its leaders began to play an ideologically intransigent role, withholding support for any amnesty legislation that included employer sanctions to preclude businesses from hiring undocumented workers in the future or a guestworker program. Arguing that employers would not want to hire anyone of Mexican descent for fear of being fined if such language were included in an amnesty deal, the group attracted criticism from other policy players at the time who saw the issue as less of a problem and were willing to compromise. But more damningly, their refusal to relent on these points led to the outright opposition of MALDEF by UFW and other labor groups whose members were willing to accept these terms in exchange for obtaining green cards (Sierra 1991).

This outcome reflects the culmination of a process begun after Ford’s severe intervention in MALDEF’s operations in 1970. In the effort by MALDEF leaders to maintain their financing, they were pulled further away from local publics and especially local politics. In the wake of

196 Ford’s mandate to relocate the organization’s headquarters away from major Mexican American population centers, board members expressed concerns about the organization’s ability to maintain an awareness of public sentiments while losing credibility as a mouthpiece for Mexican

American interests. Concerns about the former were borne out as MALDEF leaders increasingly tailored their work and the organization’s general structure to appeal to various outside funders.

But this did not hurt their credibility in politics. They became a trusted source in national politics for the Mexican American perspective and as an appropriate entity to engage with for political deal-making and bargaining over “Mexican American” issues. Despite the fears of board members, the ability of interest groups to play this role does not, in fact, require widespread, visible constituent support, but rather, the absence of controversy.

Interest groups are generally understood to be the agents of their constituents, yet as the

MALDEF case shows, a constituency is not the only entity driving the demand for organizational representatives nor the only potential beneficiary of the services they provide. Foundations with their own existential vulnerabilities can have independent motives for supporting the formation of new interest groups. Furthermore, the supposed targets of interest group influence, government agencies, courts and elected officials often benefit from an interest group’s services too. Having an organization to bargain or negotiate with, seek approval from, or provide information about and concerns of a particular segment of their electorates and clients is a valuable service. These external sources of interest group demand are in fact just as capable of sustaining an organization as constituents are unless or until that organization comes under attack from constituents. A barrage of criticism from an organization’s nominal constituents raise questions about its legitimacy and undermine its potential value to these external audiences.

197 As I explained in the introduction, the explosion of advocacy organizations in the 1960s appeared to many to herald a new shift in the interest group landscape. The increasing presence of groups speaking on behalf of broad public concerns or the concerns of large minorities promised to provide a counterpoint to corporate and trade groups which dominated in

Washington. But these organizations have paid a price because rather than solve the collective action problem complicating efforts to establish large membership associations, they avoided it entirely by turning to third parties for subsidies. This means free-riding is built into their organizational model since potential beneficiaries are not asked to contribute to the production of a collective good. But outside funders are not disinterested parties. They have needs and expectations too enhancing their status with political allies and showing public due diligence in how they spend their money. This leaves them vulnerable as well to criticism if they fail to adhere to professional standards or disappoint allies by spending their tax-exempt funds on inefficient, unprofessional, or illegitimate grantees.

In other words, it complicates the standard principal-agent relationship between the represented and their representatives, the normative ideal and widely assumed arrangement that typically defines interest group arrangements. In between the represented and their representatives, it adds another party that, through its control over interest group resources, assumes the role of principal. The expectations it imposes on its agent (i.e., the interest group) will inevitably come into tension with the needs and expectations of the group’s other set of principals: the publics it claims to represent.

Ford needed to support the founding of MALDEF in order to advance the larger agendas it had already invested many years engaged in: aiding the Democratic administrations of

Kennedy and Johnson, cultivating a profession of legal activists, and providing policy

198 interventions to address poverty. It also needed to advance a new agenda growing out of these earlier investments: addressing the ongoing civil rights challenges facing the country, especially as other social groups outside of blacks were being seen as worthy of civil rights protections requiring a significant expansion of the civil rights policy regime which had heretofore been designed only to serve Black Americans.

Neither Ford officials nor MALDEF’s early leaders had the foresight to see the inevitable tensions in the brewing between the kinds of services Ford wanted MALDEF to provide, and what locals in San Antonio and Los Angeles were demanding. Complicating this tug-of-war between foundation demands and constituent demands were the factional disputes making competing or contradictory claims on MALDEF’s energies. Without members, it was never obvious which Mexican Americans MALDEF should be serving. This left the organization problematically having to assist or appease all Mexican Americans and Mexican American groups raising noise or potentially suffer major questions about its legitimacy.

Ford officials were not getting what they needed from MALDEF given the demands from its base and might have needed to intervene regardless, but these intramural disputes between various Mexican American factions over MALDEF’s agenda only heightened the existential threat facing Ford. Not only were they funding a group that was failing to live up to the standards of legal professionals, they were backing a group that had become a source of controversy among the very public they claimed to represent. Though Ford officials had a tremendous self- interest to make a heavy-handed intervention towards the end of its first two years, MALDEF also needed to be saved from itself.

The move to San Francisco helped clarify which principal’s needs should be satisfied first, but it slowly led to MALDEF’s isolation from any identifiable Mexican American

199 constituency. The question of which Mexican American constituency MALDEF remained opaque but gave the organization flexibility when looking for foundation money. Increasingly, this became tied to progressive fads within the Democratic Party coalition. Where board members once fought over holding meetings in Mexico because they were bothered that the organization would be sending the wrong message to Mexican Americans, the group developed a significant slant towards representing immigrants and especially undocumented immigrants.44

Moreover, it also started a Chicana Rights Program that among other things, advocated for abortion rights, and pursued agendas that would have been far ahead of a conservative Catholic working class base.

Of course, by the late 1970s, such agendas were not necessarily unpopular with the leaders of MALDEF. By the time Vilma Martinez was appointed General Counsel in 1973, the leaders and staff of the organization were no longer graduates of the modest St. Mary’s Law

School in San Antonio, but elite law programs. Like Martinez, who graduated from Columbia

University Law School, they would be products of the professional legal advocacy movement and share similar understandings of the role of their organization and its objectives as the elite liberal foundation executives. Even if they still encountered friction and pushback from time to time, they were of a similar milieu.

This is perhaps to be expected. One of the biggest challenges when MALDEF first got off the ground in 1968 was finding qualified Mexican American attorneys to staff the organization.

44 Immigration became one of its main program areas and amnesty for migrants became a significant part of its agenda by the mid- to late-1970s. This would have posed a conflict with activist Ed Idar who became director of the San Antonio branch office in the early 1970s. He had published a report with the support of the American GI Forum and Texas State Federation of Labor decrying “the wetback” and their cost to Mexican American workers. See Texas State Federation of Labor and American G.I. Forum (1953). And as noted in Chapter 6, he took exception to MALDEF’s endorsement of a cabinet nominee who hired undocumented laborers. 200 It was an ongoing concern that it had to rely on so many white VISTA lawyers in those early years, but the more Mexican American students were encouraged into top-ranked law schools and toward careers in civil rights law, the more likely it was for the professionalizing board leadership to hire individuals of similar pedigrees and professional dispositions. Unlike in the

Tijerina years, the staff reflected rather than contrasted with their funders.

Unfortunately, even under an always expanding administrative state, being able to pursue incremental change through courts and federal agencies depends on maintaining control over elected offices, particularly as conservatives began counter-mobilizing against liberal influence in these venues. Under Nixon and Ford, liberals could still achieve significant victories without controlling the presidency. By the 1980s that would change. But with a progressive coalition dominated by elite-led advocacy organizations internally wired like MALDEF to avoid contact with their base out of legitimacy concerns, maintaining electoral control has become a more difficult proposition. Until progressive foundations find a way to tolerate risk and resist the urge to micromanage their grantees for a predetermined return on investment, the gap between advocates and the grassroots that we currently see is unlikely to shrink. But avoiding accountability to constituent demands is not a recipe for Democratic Party coalition members to regain electoral relevance.

201 BIBLIOGRAPHY

202 ARCHIVAL DOCUMENTS

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———. Letter. 1969. “Letter from Jack Greenberg to Leonard Ryan - 1969-07-09,” July 9, 1969. Grant 68-248. Ford Foundation records, Rockefeller Archive Center.

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205 Idar, Ed. Letter. 1971. “Letter from Ed Idar to Richard Ibañez - 1971-10-19,” October 19, 1971. M673, Record Group 1, Box 38, Folder 1. Stanford Univ., Green Library, Dept. of Special Collections.

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209 Schoenbaum, Stanley. Letter. 1970. “Letter from Stanley Schoenbaum to Pete Tijerina - 1970- 02-13,” February 13, 1970. Grant 68-248. Ford Foundation records, Rockefeller Archive Center.

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210 ———. Letter. 1969c. “Letter from Pete Tijerina to Montezuma Esparza - 1969-11-19,” November 19, 1969. M673, Record Group 2, Box 1, Folder 1. Stanford Univ., Green Library, Dept. of Special Collections.

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228 Devin Fernandes 3006 Guilford Ave, Apt B January 15, 2017 Baltimore, MD 21218 (617) 407-6465 [email protected]

E d u c a t i o n Johns Hopkins University 2010-2017 (expected) Baltimore, Maryland Ph.D. Candidate in Political Science Fields: American Politics; Law and Society Pomona College 1998-2002 Claremont, California B.A. in Politics/Public Policy Analysis .

Works in Progress “Subsidizing the Cause: MALDEF and the Limits of Foundation Patronage for Civil Rights Legal Advocacy.” (for submission to Law and Society Review)

“The Politics of Non-Policymaking: The Failure of Comprehensive Immigration Reform, 2005-06.” (for submission to Policy Studies Journal)

Additional Published Work “Hispanic Americans,” in Valelly, Richard, ed., Encyclopedia of United States Political History, Vol. 7: 1976-Current, CQ Press. (2010) (Co-authored with Peter Skerry)

Evaluation of Flexibility Under “No Child Left Behind”: Volume II—Transferability. Washington, DC: U.S. Department of Education, 2007. (Co-authored with Gayle Christensen, Ary Amerikaner, & Daniel Klasik)

Private School Participants in Programs Under the No Child Left Behind Act and the Individuals with Disabilities Education Act: Private School and Public School District Perspectives. Washington, D.C.: U.S. Department of Education, 2007. (Co-authored with Gayle Christensen, Sarah Cohodes, Daniel Klasik, Daniel Loss, & Michael Segeritz)

“Citizen Pain: Fixing the Immigration Debate,” The New Republic, May 8, 2006. (Co-authored with Peter Skerry)

“Interpreting the Muslim Vote,” The Boston Globe, November 26, 2004. (Co-authored with Peter Skerry)

National Honors & Awards

229 2015 Stanford Center on Philanthropy and Civil Society Junior Scholars Forum

2013 University of Pennsylvania Social Science and Policy Forum Summer Institute Fellow

Additional Awards 2016 Dean’s Teaching Prize, Johns Hopkins University

2016 Dean’s Teaching Fellowship, Johns Hopkins University

2013-2014 Malcolm Lauchheimer Fellowship, Johns Hopkins University

2010-2014 Connie Caplan Fellowship, Johns Hopkins University

Presentations (6/2/16) Law and Society Association Annual Meeting: “Collective Goods without Collective Action? Foundation Funding of Civil Rights Litigation Firms: The Case of the Mexican American Legal Defense and Educational Fund.”

(10/22/15) Johns Hopkins Political Science Department Seminar – Respondent to Megan Francis: “The Price of Civil Rights: Black Politics, White Money, and the Erasure of Racial Violence.”

(11/9/12) Johns Hopkins Political Science Graduate Student Colloquium – Respondent to Anne Gillman: “Understandings of Democracy and Democratic Participation Among Ecuadorian Youth.”

(9/13/12) Johns Hopkins Political Science Department Seminar – Respondent to Tom Medvetz: “Think Tanks in America.”

Teaching Experience Instructor: · Organized Interests in American Politics (Fall 2016) · Interest Group Politics and Advocacy (Spring 2016)

Teaching Assistant: · Introduction to American Politics (as Head TA, Fall 2011 & Fall 2014) · The American Presidency (Spring 2014) · The Politics of Congress (Spring 2013)

Work Experience

Policy Analyst September 2007 – May 2010 The United Neighborhood Organization (UNO) Chicago, IL Directed study of public school overcrowding in Chicago used in successful campaign for $98 million in state appropriations for UNO to double its charter school campuses;

230 Coordinated external evaluations of UNO’s charter schools, including its English immersion programs; Assisted the CEO with public writing, including op-eds for the Chicago Tribune; Researcher November 2008 - August 2009 The Brookings-Duke Immigration Policy Roundtable Assembled reference materials for panel meetings; Conducted background research on questions emerging during Roundtable debates; Served as rapporteur for each of the monthly meetings, summarizing session proceedings; Assisted with editing and finalizing report. Research Assistant January 2006 - August 2007 The Urban Institute - Education Policy Center Washington, DC Co-designed surveys on the application of educational technologies in public school districts; Cleaned, labeled, and analyzed survey data sets; Served as coordinator of a new, federally funded longitudinal data center, CALDER; Coauthored reports for the US Department of Education on flexibility in federal education funding; Participated in and arranged school site visits involving classroom observations and interviews. Research Assistant June 2002 - August 2005 Peter Skerry - Professor of Political Science, Boston College & Non-Resident Senior Fellow, The Brookings Institution Boston, MA Performed library and database research on aspects of immigration policy; Conducted phone and field interviews for research project on Muslim Americans; Oversaw logistics and scheduling for fieldwork-related travel; Wrote original research memos; Authored report on Hispanic high school dropouts (Commissioned by the United Neighborhood Organization of Chicago).

L a n g u a g e s Oral and written proficiency in Spanish

S k i l l s STATA

231