Antonia Hernández: Leading with the Law | KCET
Antonia Hernández: Leading with the Law
Antonia Hernández: My name is Antona Hernández. I currently work with the California Community Foundation, but at the time of 187, I was the president and general counsel of the Mexican American Legal Defense Fund better known as MALDEF. MALDEF was and is today the legal arm of the Latino community in the United States. It is an organization that focuses on promoting and protecting the lives and the interests and the rights of the Latino community in the United States.
Proposition 187 was a proposition that would deny health benefits, social benefits, all sorts of benefits, education, to undocumented individuals, but the worst part about it, it deputized all individuals. If you interacted with an undocumented person, you had an obligation to report that person. That was very alarming. If an undocumented person went to a hospital, the kids going to school, it was just a very draconian, scary situation, particularly in the Latino community and all communities, the Asian community.
We all have relatives who are undocumented. In fact, in the immigrant community, we refer it as to mixed families. Mixed families means that there's a citizen in the household, there's a legal resident in the household, and there's an undocumented person. It hit very close to home and the tentacles extended far beyond the impact to the undocumented community. It impacted citizens who were forced to be deputized and to report knowledge of any undocumented person receiving any type of state aid.
I first learned of Prop 187 when a friend of mine who was part of the Wilson team told me that they had determined that they were going to use the immigration issue as the vehicle to get reelected. At that time, the governor in the polls was behind and Kathleen Brown who was the Democratic candidate was ahead in the polls. The decision was made by the political operatives that were working with Governor Pete Wilson that immigration was going to be the key that would win reelection for him.
At that time there was a very anti-immigrant mood in the country. A dear friend of mine, Jerry Epstein, was at that time a volunteer, Republican volunteer who was constructing the state building in Los Angeles. He happened to be at the meeting where the political operatives were deciding how they were going to win the election. They determined that immigration was the issue that was going to be the winner. He called me and he says to me, "Antonia, I'm so sorry to tell you, but they are going to use immigration as the wedge issue in order to win reelection."
Governor Pete Wilson had been a very moderate person. He was a very moderate collaborative mayor when he was the mayor of San Diego. He hadn't been extreme in his first term as governor so it was so shocking and surprising that he would use immigration knowing the number of immigrants and the impact it would have on California. To me, it was that's no way to win by hurting people, but that's the decision that was made.
I was very concerned because I knew that we didn't have the resources to put up a fight. Our community was not at that time as organized and the Democrats, by and large, were afraid of the issue. They were [unintelligible 00:04:41], they were middle. They didn't really want to touch the issue either. It was very disappointing and quite frankly, very lonely. Going up against a governor, a political machine, we in the ACLU, small nonprofit organizations, we don't deal in partisan politics. Our issue was protecting the right of the immigrant community, of the Latino community, of all immigrants. It was a very difficult time for us.
People will understand when I say it's like they kicked you in the gut, they took the wind out of you. I'm a Pollyanna. I'm an immigrant. I drank the Kool-Aid, the constitution, the bill of rights, we're a country of laws, all that stuff, and yet you have this thing thrown at you. There was this sense of, wow, how do you react when you feel a sense of total rejection? There was all this feeling and what are we going to do and we have to file the lawsuit and we have to do that, but we can only be sad and miserable for a very short period of time because now the hard work as lawyers began and we had to file the lawsuit.
Going to the courts it's like a crapshoot. You never know, there's no assurances of whether you're going to win or lose. Most people say, well, I'm going to sue you. It's like, I'm going to be vindicated. No, we go into the court and you don't know what you're going to get, but we had no choice. I must say that MALDEF, sometimes we felt like we were alone just speaking out against that, but slowly it became a rallying point. People begin to realize the impact that it would have. More than anything, I don't think it's the realization of the impact, the realization that it was against us the Latino community, and specifically the Mexican American community.
What I would say to everyone, I said, look, the mainstream community can't tell a Cuban from a Venezuelan, from a Mexican, from a non-documented, from a legal resident, from a US citizen, they paint us with one brush. This is about us and it's not about the undocumented community, it's about the Latino community. At that time, we were called the Hispanic community in this country. The attack is about us. It's about the changing demographics and we have to understand and fight back. I think slowly, the realization began to take shape and it became an organizing tool.
I remember we had no money. MALDEF was this tiny little nonprofit. I had a budget of $7 million for the whole country. You're not talking about this mammoth organization and we didn't take government funds. All of the funds to run MALDEF came from foundations, individuals, and to some degree, a small part from corporations. Trying to galvanize the community to organize. I remember going to the asociaciones, the Mexican association from different States.
I remember going to the [unintelligible 00:08:38] and I would say, "Necesito dinero, we need money to fight this battle," and they say, "Señora, no se preocupe, do not worry." They would go off and they would have tamaleras, they would have dancing, and they'd come in with whatever winnings and they would say, [Spanish language]. At the end, towards the end, that realization that we really needed to come together. As you know it was in many ways the turning point for the Latino community as far as realizing that we had to defend ourselves. We had to promote ourselves and we had to go out there and do, even if we had to do it alone.
This was the rallying point of bringing together the tools of litigation and organizing and mobilizing the unions, [Spanish language], all of us coming together, and that's what really turned for us politically in the state and in the country. Now, we lost to 187 in the sense that it passed, but it was the moment that turned around our community and brought forth a value of organizing and taking control of our destiny. To me, that's the most important thing. We took control of our destiny. It was up to us. Nobody was going to protect us. Nobody was going to defend us. It was us that we had to do it. I think to this day, the results are there for people to see.
As we do with most litigations, or we did when I was there, we sought partners, partnered with the ACLU. We sought the assistance of a law firm to come in and help us. Litigating these types of cases are extraordinarily complex and difficult and expensive. We had to put together the strategy and the resources to be able to fight 187. Bringing together ACLU, a private law firm to help us, volunteers, was the beginning of the strategy, then raising the resources.
Then thinking about the legal theory. How could we win this case? With lawyers, you have different strategies, you have different opinions coming together. Putting together a strategy in court to fight it was no easy matter. In many ways, ACLU was our partner, and they were very vocal about it, but in the media and in the public, it was seen as an attack against Latinos, and therefore, a lot of the attention and focus was on MALDEF because we represented that community.
I partnered with the ACLU, a lot on a lot of litigation. Ramona Ripston who was the director at that time of the LA office, and I were dear friends. We always saw eye to eye. We were very collaborative. Within the lawyers, it was Richard Larsen, myself at MALDEF, and Tom Saenz, who at that time was a very young lawyer. The differences were in approach and theory was one of the-- it was a constitutional issues.
When we wanted to put in and we always believe that preemption and that immigration was a national issue, not a state issue, and therefore, the state was preempted from engaging and litigating and advocating, legislating on this issue. The way lawyers settle these issues is you put all the issues on the brief. So we attacked the proposition through different issues. It just came out that the issue that we were promoting, the preemption issue, is the issue that at the end, gave us the preliminary injunction.
Immigration in the law is perceived to be the domain of the federal government, where states cannot interfere. Because of that, if they did you have 50 different immigration laws. It's the same thing with commerce. Certain issues are the domain of the Federal Court in our system of government. Certain issues, like education, are a domain of the states. You have different approaches to education in the States but immigration is a federal issue. Therefore, preemption is what the word says, it preempts the states from legislating and litigating issues involved in immigration.
That's the argument that we put forth saying, this is a federal issue. It is the domain of the federal government. It is the domain of Congress to pass immigration legislation, not the state. Now, on the other side, they argued but this is not immigration, this is benefits, and therefore benefits. What we argued is any legislation that adversely impacts an immigrant community is a federal issue.
That issue and that difference in philosophy, state versus federal, and what is the bright light that divides something federal and state is still being litigated today. It's the same thing with Doe v. Plyler. Doe v. Plyler is a case that came out of Texas. In that situation, the state of Texas was going to deny the privilege or the right of undocumented children to go to school to receive a public education. That case went up to the courts and the court said, "The state of Texas cannot do that. It's an immigration issue and only the federal government has the right to determine the status of an individual and the rights that that individual has based on their status."
To this day, Doe v. Plyler is still the law, that public education cannot be denied to undocumented children and said it was immigrant undocumented issues, and the issue of status is a federal issue. Preemption basically means you cannot engage in legislating on issues that are preempted by the federal government and immigration is one. Litigation is not one where you have memorable moments. It's a lot of hard work, it's a lot of research. It's a lot of debating, it's a lot of arguing. It's a lot of, particularly in a case like this when you have so many different players--
To me, what sticks in my mind about the litigation, but not just this one. This one is the example but many of the cases that MALDEF has litigated, what sticks in my mind is the determination. The hard work, the sweat of these young lawyers who literally-- I used to tell people, I had the best law firm in the country, the best and the brightest, the Harvard's, the Yale's, the UCLAs, the Columbias, these young lawyers, mostly Latino, but not exclusively, who literally went to law school, to come back to their community and to engage in the law, in a way of promoting the interest of the Latino community. To me, that was what sticks in my mind. The devotion, the commitment, and the sacrifice.
I remember one lawyer literally came to MALDEF, and he was living from credit card to credit card to credit card with an immense debt. I finally told him, "You got to leave MALDEF. You got to go to a law firm and earn a lot of money." I used to tell lawyers when they come for MALDEF, I would say okay, "Do you have a working car? Can you pay for your apartment? Do you have the basics? What's your debt when you leave law school?" Because the commitment to work for MALDEF, and I must say, I have lawyers at MALDEF. They were there for 10, 12 years, and even longer, it's a financial sacrifice. There isn't a moment for me--
I spent 23 years at MALDEF and to me, the memorable thing is the commitment of those people. Tom has been there I believe now for I think 18 years, 15 years. His whole legal career has been at MALDEF. Nina Perales in Texas, who has argued many times before the Supreme Court, the same thing. To me, that commitment of coming back to your community and serving your community is what's memorable to me.
I've been a lawyer for over 45 years. I was in MALDEF for 23 years, and I worked in the Senate before with some brilliant lawyers. Justice Stephen Breyer was my boss. David Boies hired me. So I know, good lawyering. I know brilliant lawyering and Tom is one of the most brilliant lawyers I've ever met. He is just passionate about the issue. He clerked for Reinhardt and another judge. Tom could have whatever he wanted in the legal profession. He had his choice to go to a law firm, he had a choice to do whatever. He's one of those rare individuals, but he wanted to work for MALDEF.
I remember Vilma called me and said I got this fantastic young lawyer who wants to work for MALDEF and Tom had already been offered a job with a law firm, one of the premier law firms. I told Vilma and Tom laughs to this very day I said I don't hire pochos. Tom didn't speak Spanish at that time. I said, "How is he going to represent Latinos? Most of the people we represent are immigrants that don't speak Spanish." She says, "Just talk to the kid."
Here comes Tom, he hasn't changed very much. He looks the same. Very serious, came in, interviewed. I said all I can offer you a job, I think it was like $32,000 a year, which is nothing for a lawyer. He'd gone to Yale. This kid is whatever, I said to him, "You just had a job offer that offers you over $100,000 and you want to come to work for MALDEF?" He goes, "Yes." That was the- the passion that this kid has this person has for the Latino community is hard to describe.
I brought him in. He was hired and he was put to work on 187. When we had the hearing at the court, I was supposed to do the argument. But when we got to the court and after Mark had done his argument, I said, "Tom, it's your turn." Because the judge asked a question on preemption and that was his issue. He had researched that issue. I said, "Tom, you go out there." That was the beginning of the legal legend of Tom Saenz. He took on that case, it was his issue then want and he was my lawyer. I was the President General Counsel, but he was my lawyer on 187.
Well, first of all, we got a restraining order and then a preliminary injunction. 187 never went into effect. That to us was the most important part, getting the restraining order and the preliminary injunction and the judge basic, when a preliminary injunction says we're putting a hold on this until there's a full hearing at the trial to determine the merits, but you the plaintiffs, MALDEF, ACLU, have proven and provided enough facts of the harm that will happen, then we're putting a stop to it, so 187 never went into effect. During that period, as much as possible, life continued the way it was.
When you have a preliminary injunction in the courts, you have the luxury of litigating it towards the end because whatever the issue is, is not enacted. For us, it was just the preparing of the case, the different hearings, the different evidentiary hearings. It's a long legal process. Would we have gone to trial? Yes, we would have gone to trial later because it takes that long, but the settlement prevented that from happening. The real, I would say, hero, is Governor Gray Davis because it was the settlement with Governor Gray Davis, that killed 187. He settled with us when he became governor and Pete Wilson left.
You imagine, '94 we lose. It's four years hence until you have the election of Gray Davis. All this period of time, litigation is long, it's expensive, and you don't know, but we had no choice. At the end of the day, I thank Gray Davis for settling and putting an end to 187 in California.
He was governor. It was during the election. It was during the period of the election and La Opinión, José Lozano, and Steve [unintelligible 00:24:35] who at that time was with one of the public relation firms, Hillard I can't remember the name, they put together a breakfast meeting with the governor and leaders of the Latino community. Both José and Steve are dear, dear friends of mine. They invited me and jokingly, they were really concerned. They said, "Antonia, you have to behave. You have to behave, the governor is coming to speak to us."
They made the mistake of sitting me right in front, very close to the podium where the governor was speaking. At the beginning, I behaved. It's a photo that I think speaks 1,000 words. My anger, my frustration with the governor, and it was the look of how could you do this to our community? I only behaved for a few minutes. Then after that, I thought what the hell. I have nothing to lose. Yes, we interacted, we engaged in conversation, different perspectives. It didn't get us anywhere.
He, to this day, is dead serious that he would do it again and that he was doing it for the right reasons. He indicated that he was doing it because the state of California was paying and he wanted to force the federal government because it was a federal issue to pay for the services. I told him, it was a bunch of hogwash. Undocumented individuals pay taxes when you go buy at the stores when you buy gas. Nobody asked you whether you're documented or undocumented, you pay the same taxes.
Now, granted that most of the taxes that undocumented individuals pay go to the federal government, but that money comes back to the states. I didn't buy the argument that he was just trying to get the federal government to contribute to the cost of the undocumented. There were a lot of different ways to do it. Prop 187 was a mean spirited proposition, and he captured the ugly mood of the state and the country. He manipulated it for his benefit to get re-elected governor of California. To me, that was totally unacceptable.
I had a speech that thanked Pete Wilson, for scaring the bejesus out of my community. It was a tongue in cheek speech, but it was very true speech, that it took fear to activate our community. There's a reporter, Gustavo, from the LA Times who just wrote an article, and he said that in the Latino community, we have the Llorona and was it Chupacabra or something else, and Pete Wilson that we scare our kids with.
"If you don't behave, we're going to get the Llorona after you. Well, if you don't behave, Pete Wilson's going to scare the bejesus out of you." It was one of those things. Thank you, Pete Wilson, for scaring the bejesus out of our community and getting us to be active in our community. I used to give it when I was in MALDEF because I was very grateful at the end of the day. He was the reason where we rose up and took control of our destiny.
Well, the irony of it is that I was out of town. I was hustling money somewhere in the East Coast. I wasn't even in town. Watching it on television was so inspiring to see block after block of people. The everyday maid, the restaurant worker, the organized labor, bringing all those people, all those people coming together, it was a moment of total, for me, ecstasy. Yes, there was controversy, of course, over the Mexican flags and all of the other stuff, but putting aside that, it was just the hundreds of thousands of people who finally to me, saw the light and said, okay, documented citizen, legal, we're coming out. We're putting ourselves out there. This is who we are and you cannot continue to do this to us.
To me, I was just flabbergasted. I was so happy. That was one of the moments where you say [Spanish language]. We're awake. [Spanish language]. We're going to be out there so it was wonderful. Notwithstanding the controversy about the flags.
To me, it wasn't good or bad, it was the demonstration of people's emotions. You must understand this was a show of our community. We weren't politically savvy. You just say, "Don't come out with Mexican flags." I mean, this was just spontaneous. Nobody expected this. People were showing their emotions, and I remember Gil Cedillo, said that he printed thousands of American flags that were there, but people were showing their emotion, what they felt.
I mean, to me, it was like, yes, we were not about controlling people. We were not about you can express this, but you cannot express this. This was a true expression of our community such as it was, we are in a country that we value free speech and people were expressing their views, their feelings, and to me, so be it.
The MALDEF dinner in LA always happens on the first Thursday of November. It's usually an election on Tuesday and then the dinner. We were devastated. I mean, the vote was significant. I think it was 41, 42 to 50-something. We were just stunned and devastated. I had dinner on Thursday and usually, the MALDEF dinner set that time you brought in 700, 800 people. It was the event of the Latino community.
It was so quiet. I mean, it's hard to describe the mood of the room other than sadness. I remember that Favian was there as a kid. I remember [unintelligible 00:32:17] and Richard Amador, a whole bunch of people were there. I had to get up and make a speech. I think the speech that I made was, "Hey, if this doesn't wake up our community, nothing will. This is the time for us to take control of our destiny. This is, but a bump in the road.
The growth of the Latino community, the empowerment of the Latino community, this is the beginning. This is what we need for us to realize that we must organize. We must come and literally say, "We're going to take control of our future." In many ways, it turned out to be the truth. The organizations, marches, all of our elected officials today in California, were kids, were organizers. Gil Cedillo, Kevin de León, Fabian Núñez, Alex Padilla, all of these folks were young kids out of college, and those are our leaders.
The interesting thing is that California is not the exception. It's happening in Arizona with 1060. If you look at the number of young elected officials, Latinos who are getting elected in Arizona, it's the same pattern because 1060 was very similar to 187. I don't know where the mainstream doesn't get the message. It's like a self-organizing tool, attack our community, and you're going to get that reaction.
1070 was the same type of initiative depriving undocumented of benefits in Arizona. Like in 187, it was fought in the courts. MALDEF was very involved in that battle. It organized, it awakened the Arizona Latino community. You're seeing today the same results that you saw as a consequence of 187 in California. That is that the effort to attack us through initiatives, through attacking the immigrant community is backfiring on the mainstream.
What is happening instead, it's a tool for us to organize our community, to become politically active, take control, and be part of those people that make the laws so that we can make laws that are more just, and protective of the Latino community. Not just the Latino community, but the entire society. We are a country of immigrants. We all came from someplace. It's an awkward situation where we say we're a country of immigrants except you, or you. It's an oxymoron, a contradiction in the history of the United States. We're a country of immigrants, but at the same time, there's been these awful anti-immigrant periods.
It was the Italians, Germans, different communities. The Chinese Exclusion Act against the Chinese in the 20th century and post the Bracero program, it's been against the Latino community and the fear of the changing demographics, the Browning of America. We are the country of immigrants. It's truly becoming-- In the 21st century, it's not the Latino community, it's the immigrant world community, the Armenians, the Iranians, the Koreans, the Africans. They're all coming to Ame-- We are the world. That's what made us so vibrant. The entrepreneurship of immigrants, that's what makes this country great. Yet we keep fighting against it.
It's a uniquely American situation and we can't go back to, I don't know where they want to go back to because America was always a multicultural country, but it's becoming much more evident today. '87 was the manifestation of the beginning of the reaction of the mainstream. People who oppose Doe v. Plyler have been trying in many different ways to get it to the Supreme Court because they feel that now philosophically the Supreme court, might rule differently and overturn it.
With a lot of controversial issues, the same issue with abortion, affirmative action, all these controversial issues, to a large degree, the victory rests on the philosophical philosophy of the majority of the Supreme court. It is well known right now that the Supreme court have the DACA case today. We're afraid based on the oral argument and the questions that the justices asked, we're worried that we might lose it, and it's a one-vote difference. It's either going to be five for one way or five for the other. That's how philosophically divided the Supreme Court is.
I don't think that the American public realizes the power of the judiciary and the importance of having fair-minded justices, who will look at a case, separate it from their philosophical beliefs or philosophical theory of the law. Right now, most folks are very reluctant to take things issues to the Supreme Court, because they're not going to be ruled in what I perceived our favor. Thank God for Doe v. Plyler but it's a shaky status because people are trying to challenge it. They've been consistently trying to challenge it over time.
Latinos have become integral to the mainstream of this state, politically, economically, socially. It opened the door for a state to be much more accepting of its diversity. A lot of Latinos who participate and non-Latinos in the fight against 187 are now elected officials. We have a thriving business community. Yes, we still need some more economic empowerment, but we're moving in that direction. Socially, immigrants impact the society that they come into, and the society is impacted by that community.
You see in California, we're right now, very vibrant. Economically, we're what? The eighth or seventh economy of the world. We have immigrants from every part of the world. It's the innovation, the creativity. It shows that we embrace immigrants, we embrace who we are, we embrace new people, we will be better off. California is the future of this country, and if you look at California, ain't that bad. In fact, it's pretty good.
I feel that in many ways, it was a painful way for California to accept its present and its future. I'm very proud to have been part of that, that allowed California to become what it has. Oh, yes, we have our problems. We have homelessness. We have income inequality. We have a long ways to go. I'm not planting California as a Nirvana, but darn it, as we've accepted our immigrant roots. I think it's one of the most welcoming states in the union and it's a thriving, vibrant, diverse state. If the rest of the country accepts its future, it's looking pretty good.
- Written by: Pilar Marrero, Portrait by: Samanta Helou Hernandez
Find more firsthand accounts of the campaign against Prop 187 here.
When Antonia Hernández speaks about anti-immigrant waves periodically shaking up the United States of America, she has her own family's experience as background. This life experience helped shaped her path as an attorney, civil rights leader and philanthropist.
"This is a country of immigrants; we all came from someplace. But we've had these awful anti-immigrant periods. Against the Germans, the Italians, the Chinese, the braceros,” she says. “In my opinion, it is the fear of the changing demographics. It's the browning of America.”
Hernández was born in 1948 in Coahuila, México and was raised on a small communal ranch called El Cambio. Her father, Manuel, was born in the United States, but along with his parents, was deported to Mexico in the 1930s during the Mexican Repatriation period.
At the time of the Great Depression, Mexicans and Mexican Americans were blamed for exacerbating the country's economic woes and easily targeted as mestizos. It is estimated that between 400,000 to 2 million were deported, many of them birthright citizens like Antonia's father.
When she was eight, in 1956, the Hernández family moved to the United States and settled at the Maravilla Projects in East Los Angeles. To make ends meet, the family often spent summers in the San Joaquin Valley picking crops. Antonia, the eldest of the children, also helped sell her mother's homemade tamales in the neighborhood.
After graduating from Garfield High, she did well in school and went to UCLA on several scholarships to get a B.A. in History, with the plan to become a teacher. But she soon realized that the change she wanted to help achieve needed the intervention of the courts. So, she ended up going to UCLA Law School, where she earned her J.D. in 1974. She passed her bar exam and became a United States citizen as well.
As a young woman, Hernández participated in marches and public demonstrations, including the Chicano Moratorium. Her dad used to drive her to these events.
After graduation, Hernández went to work for the Los Angeles Center for Law and Justice and the Legal Aid Foundation. Later, she was staff counsel to the U.S. Senate Committee on the Judiciary, the first Latina to hold that position.
In 1981, she went to work for MALDEF, the Mexican American Legal Defense and Educational Fund. In 1985, she became President and General Counsel.
That's where she was when Proposition 187 came about in 1994. It was a small organization at the time, with a national budget of 7 million dollars. The organization also did not take government funds. She could not pay her staff attorneys much, and what she most admires to this day is the sacrifice and dedication of many of the best legal minds, mostly Latino but not all, who had worked in the MALDEF staff through the years.
As MALDEF approached the lawsuit against 187, Hernández went to the Mexican “Asociaciones,” community groups that represent migrants from different parts of Mexico to raise extra money for the litigation.
“I remember going to these groups and telling them we needed money to fight this battle. And they would say: “Señora, no se preocupe" (Lady, don't worry). And they would have their tamaleras and their dances, and they would turn over their earnings to us.
“In the end, it was about coming together,” she remembers this as a lonely moment for civil rights organizations and groups that were facing the state of California's lawyers in court to dismantle a law that had just been passed by an overwhelming majority of voters.
“In many ways, this was the turning point for the Latino community as far as realizing that we had to defend ourselves and that we had to do it alone,” Hernández recalls, 25 years later.
To litigate the issue, MALDEF partnered with the ACLU and with a private law firm. But the pressure was always on her organization, as the representative of the Latino community, the one group that was especially targeted by the initiative.
After all these years, and having moved from law to philanthropy — she left MALDEF in 2004 to become the president and CEO of the California Community Foundation— Hernández is still bitter about then-governor Pete Wilson, who pushed the proposition to enable his reelection.
Nonetheless, she believes that the proposition had a good, unintended consequence that has helped the state and the community.
“It took fear to activate our community. I actually had a speech at the time that thanked Pete Wilson for scaring the bejesus out of my community,” she says. “He was the reason why we rose up and took control of our destiny.”
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