David C. Marcus: The Unsung Civil Rights Hero

“The unsung hero is the light that guides us through the darkness, without ever seeking the spotlight.”

On a warm sunny fall day in 1943, in Westminster, California, Soledad Vidaurri walked with her two children, her niece, and her two nephews to enroll all of them in the neighborhood elementary school.

Upon arriving at the school, Soledad was informed that her children would be admitted into the so-called “American School” as they were light-skinned and had a French-sounding last name. Her niece and nephews, on the other hand, would not be admitted due to their Spanish surnames and darker skin. They would have to attend the “Mexican School.”

Outraged, Soledad turned around and marched the children back home. Her brother, Gonzalo Mendez, learning that his children were rejected, was equally outraged. The following day, Gonzalo went to speak to the principal and was informed that his children would not be permitted to register. He then went to the local school board meeting where he was also turned back. He then proceeded to present his concerns to the Orange County school board and again his request fell on deaf ears. Undeterred, two years later, Gonzalo and his wife, Felicitas, along with a group of Mexican-American parents, filed a class action lawsuit which was presented and argued by their attorney, David C. Marcus.

David C. Marcus

Marcus was born in Iowa in 1906. He was the eldest of five sons born to Mary and Benjamin Marcus. Both of his parents were Jewish immigrants from Eastern Europe, who met and married in the United States. Benjamin initially supported himself and his family by peddling goods throughout the Midwest and later founded stores in Albuquerque and Los Angeles. Marcus’ brothers would follow in their father’s footsteps and become businessmen. Marcus decided to pursue a legal career and enrolled in the University of Southern California (USC) Law School, where he became involved in the USC Law Clinic. The Clinic provided pro bono legal advice to the public and first-hand experience to law students. After graduating from law school, he worked briefly for the Mexican Consulate in Los Angeles and then opened his own private practice, which he maintained for the rest of his life. He would specialize in immigration and criminal law but, on occasion, he would take on civil rights cases, as he did with Mendez v. Westminster.

The Dilemma

Upon agreeing to represent the Mendez plaintiffs, Marcus first had to determine how to proceed with the case. He decided that the matter should be filed and presented as a class action but debated where to file the case. If he went to state court, he would have to argue that, while California’s education statutes provided that the school districts could segregate Asian-American and Native American students, the statutes did not mention Mexican-American students. The difficulty with this approach was that the legislature could easily remedy this deficit by amending the statutes to include Mexican-American children. Another drawback to proceeding in state court was that, if there was a ruling in his clients’ favor, the ruling would only affect the four Orange County school districts.

Litigating the matter in federal court was also fraught with difficulties. In the mid-1940s, the Supreme Court of the United States seemed still committed to Plessy v. Ferguson, maintaining that segregation of school children was constitutional. A number of other decisions in the 1940s further suggested that the Supreme Court was reluctant to challenge race-based governmental actions, i.e., Hirabayashi v. United States (1943), and Korematsu v. United States (1944). While these decisions had nothing to do with education, they were reflective of the federal courts’ inclination to uphold governmental actions that differentiated among individuals on the basis of their perceived race or ancestry. Thus, there was no indication whatsoever that the Supreme Court would be willing to undo the concept of “separate but equal” or even consider an argument pertaining to the harm associated with segregating school children. For Marcus, the question was how to get his clients their day in court.

The Trial with the Unusual Evidence

What if Marcus argued Mendez had nothing to do with race? What if he argued that the case was about discrimination against white people? The United States Census Bureau at the time considered and counted Mexican-Americans as white.¹ If the federal government found them to be white, it was improper to segregate based on ethnicity. In essence, the case was not about race, it was about national-origin discrimination.

Marcus’ approach, then, would be to use the Fourteenth Amendment, setting forth an argument that the segregation of Mexican-American students deprived them of their federal right to equal treatment by the state. The school district, in essence, was violating the children’s rights under the U.S. Constitution’s equal protection clause. This unusual strategy would allow Marcus to argue that segregated schools produced feelings of inferiority among Mexican-American students, jeopardizing their ability to be productive Americans. To reinforce this argument, he would use social science expert witnesses to testify how segregating children threatened their self-esteem and, in the process, segregated school districts were producing an inferior class of citizens where one did not exist. This was a tactic that had never before been utilized. Mendez would become the first federal case that would openly challenge “separate but equal” segregation in elementary schools.

The Court Decision

On February 18, 1946, Judge Paul J. McCormick decided in favor of the Mendez plaintiffs. A pertinent portion of McCormick’s opinion read as follows: “A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage.”² McCormick literally was calling into question the long-standing legitimacy of the nation’s equal protection laws as they applied to education. McCormick opined that school segregation impeded learning instead of enhancing it.

McCormick was not addressing or attacking the constitutionality of Plessy v. Ferguson, which established racial segregation as the law of the land. Instead, McCormick, was outlawing segregation based on national origin.

The case, which had received very little media attention, became national news and, as a result, would pique the interest of civil rights organizations around the country. 

The Appeal

While the case was pending in the U.S. Court of Appeals for the Ninth Circuit, various advocacy organizations, including the American Jewish Congress, the American Civil Liberties Union, the Japanese American Citizens League, the National Lawyers Guild, and the National Association for the Advancement of Colored People (NAACP) submitted friend-of-the-court briefs in support of the Mendez plaintiffs. Even the Governor of California, Earl Warren, instructed his Attorney General, Robert Kenny, to file a friend-of-the-court brief requesting that the court should not only uphold the trial court decision but that the legislature should also repeal the statutes that required separate schools for Native American and Asian-American children.

On Appeal & Aftermath

The Ninth Circuit did not overturn racial segregation in its judicial district, but it did hold the basic premise of Judge McCormick’s ruling. The court stated, “Enforcing the segregation of children of Mexican descent violated the 14th Amendment and denied them equal protection.”³ The California legislature subsequent to the Ninth Circuit’s decision passed legislation repealing all school segregation. Thereby, rendering the issue as moot.

Without a doubt, the innovative trial strategy engineered and employed by David Marcus in Mendez greatly contributed to the success of the case. As well as laying the groundwork for more far-reaching decisions to come. It is unfortunate that we know very little of this unsung civil rights hero other than he was a socially conscience lawyer who was always striving to make a difference in this world. And maybe that is all we need to know.

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1. The Treaty of Guadalupe-Hidalgo between Mexico and the United States, signed on February 2, 1848, legally categorized Mexicans as white.
2. Mendez vs. Westminister School Dist. Of Orange County, 64 F. Supp. 544, 549 (S.D. Cal. 1946).
3. Westminster School Dist. Of Orange County vs. Mendez, 161 F.2d 774, 781 (1947).