Our Chosen Path: Esperanza v.
The City of San Antonio

by Amy Kastely, 2002

Story links

Background and Current Status of the Lawsuit

Events Leading to the Lawsuit

Esperanza’s Response to the Defunding

Significance to long-term national and international struggle for
cultural rights for minority communities

Todos Somos Esperanza

Reflections on the Importance of Cultural Rights Such as those Raised in the
Esperanza litigation

Contributors to the Esperanza campaign and lawsuit

A chicken is being sacrificed
at a crossroads, a simple mound of earth
a mud shrine for Esbu,
Yoruba god of indeterminacy,
who blesses her choice of path.

- Gloria Anzaldúa, Borderlands / La Frontera, p. 80

The Esperanza case is the first case in the United States addressing issues of race and ethnicity in public arts funding. It is the first case asserting a right of cultural integrity for minority communities within U.S. law. The case challenges the United States’ long-standing resistance to recognition of cultural rights and establishes a foothold for further work to strengthen the cultural rights of indigenous and minority communities.
I was a member of the legal team working for the Esperanza. However, I am not representing the Esperanza as I write this essay. Instead, I am putting forth my own views about the case and its significance.

Background and Current Status of the Lawsuit

In 1997, City of San Antonio funding for the Esperanza and two of its sponsored organizations, the San Antonio Lesbian & Gay Media Project and VÁN, was eliminated after a series of public and private attacks. In 1998, the three organizations filed suit in federal court against the City of San Antonio, alleging violation of the First and Fourteenth Amendments to the United States Constitution and of the Texas Open Meetings Act.

In August, 2000, a trial was held before Judge Orlando García. This trial was limited to whether the City had violated the Esperanza’s rights; a further trial on remedies would be held only if the City was found liable. In an 85-page decision issued on May 15, 2001, Judge García found that the City had violated the Esperanza’s right in all of the ways alleged in the original Complaint. Judge García then asked the parties to agree on the appropriate remedies for these violations. The Esperanza negotiating team, including Esperanza Board Co-Chairs Gloria Ramírez and Josie Mendéz-Negrete, VÁN collaborator Penny Boyer, and Esperanza Director Graciela Sánchez, went through months of negotiation, with two separate mediators. Finally, the City agreed to monetary damages, a consent decree requiring the City to respect the rights of applicants for arts and cultural funding and requiring the City to establish criteria and procedures in advance of when the applications are due, and attorneys’ fees.

These remedies have been proposed to Judge Orlando García. If Judge García approves these remedies, final judgment will be entered against the City and the City will be ordered to compensate the Plaintiffs and comply with the consent decree. If Judge García does not approve these remedies, a second trial will be held on the limited question of remedies.

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Events Leading to the Lawsuit

Through countless hours of deposition testimony (in 23 depositions) and numerous witness interviews and thorough review of thousands of City documents, we learned the complex history of the 1997 defunding decision. We learned of convergent efforts, both in and outside of City government, to defund and thereby to weaken (or shut down) the Esperanza.

The Esperanza has been active and vocal in its advocacy on behalf of those injured by all forms of oppression from its beginning in 1987. The organization has been involved in numerous controversial issues, including advocacy for the rights of workers, anti-war protests, organizing for low-cost housing, demonstrations against the Klu Klux Klan, and the like. Throughout its history, the Esperanza has worked hard to maintain a cooperative relationship with City government, recognizing that City officials are not the source of oppression against the people of San Antonio, although they have often been the agents of oppressive forces.

In 1994, however, the Esperanza helped to organize the Coalition for Cultural Diversity, a group that effectively challenged the lack of diversity of San Antonio’s publicly-funded cultural institutions. These efforts resulted in much controversy, public commitments to change by political and civic leaders, and then backroom deals to maintain existing patterns of funding. Some members of City Council were angered that the Esperanza brought attention to the unfairness in the City’s arts funding. Emboldened by the success of the anti-affirmative action movement, some decried the Esperanza for raising issues of race, ethnicity, class, and sexuality in connection with public funding.

The Esperanza became known inside City government as a group that would challenge the ways in which City funding favored Anglo interests and discriminated against Latino and African-American communities. Moreover, the Esperanza could mobilize hundreds of people for public protest, letter-writing campaigns, petition-signing, and the like. For City officials - particularly those concerned with public election - the Esperanza was a troublemaker. In the following year, 1995, some members of City Council attempted to eliminate the Esperanza’s city funding, but they could not garner the support of a majority. The City did substantially cut grants to the Esperanza, including project grants for MujerArtes and the Youth Media Project, but the Esperanza was not yet entirely defunded.

In 1997, Howard Peak, who had been a new Council Member during the cultural diversity controversy, was then elected Mayor. Mayor Peak took the position that the Esperanza should not receive city funds, because the Esperanza’s work and vision was political and therefore not artistic. It now seems clear that Mayor Peak guided the defunding of the Esperanza, including encouraging the involvement of the right-wing (personally appearing on conservative radio talk shows to encourage opposition to the Esperanza), garnering support for the defunding from a network of conservative white gay men (most prominently Ted Switzer, a doctor and editor of the now-closed Marquise newspaper; Rob Blanchard, now-deceased professor of journalism at Trinity University; and Glenn Stelhe, wealthy telephone company entrepreneur and libertarian activist), and securing the unanimous agreement of Council in a closed meeting at City Hall late in the evening before the September 11, 1997, vote. Throughout, Mayor Peak’s position was that the Esperanza’s social justice programming is political, that art is not political, and therefore that the Esperanza does not qualify for "arts" funding.

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Esperanza’s Response to the Defunding

The Esperanza community struggled for almost a year about how to respond to the 1997 defunding. It was difficult to survive - in addition to the City funding, the City withheld our state funding, some local private foundations rejected our funding applications because of the adverse publicity, and some individual donors were frightened off. So the Board, staff, and community worked hard to find emergency funds and to cut spending on surviving programs.

Moreover, the politics of the defunding were difficult to address. We had been attacked by an unlikely alliance among City officials, conservative white gay men, and the Christian right-wing. We had been defunded by a City Council that was majority Latino. And further, the media and city officials had emphasized the lesbian and gay film festival as the reason for the defunding, thereby driving a wedge between the Esperanza and other progressive arts and social justice organizations, who were frightened by homophobic attacks. We knew both the power of the homophobic wedge and the irony of its role in City politics. Not only were the Mayor and City Council willing to fund the Alamo City Gay Men’s Chorale, but Dennis Poplin, coordinator for the Lesbian & Gay Media Project, was advised by the City Department of Arts and Cultural Affairs that the Media Project would be funded if it broke its association with the Esperanza.

The more we learned of the actual events leading to the defunding, the more clear it became that the Esperanza’s co-sponsorship of the Lesbian & Gay Film Festival was only one of several factors in the defunding decision. Equally, if not more, important was the Esperanza’s work on cultural diversity. Equally, if not more, important was the Esperanza’s dedication to presenting work of artists that challenge class, race, and gender privilege. This work is "dangerous" because it may offend people of whatever race who enjoy class and gender privilege; it may offend people of whatever sexuality who enjoy race and class privilege; and so on. The targeting of the Esperanza was successful not merely because some of the Esperanza leadership are lesbian, but because some leaders are out lesbians of color. The risk in doing multi-issue organizing is that you are vulnerable to multi-directional attack. The danger for people who work fully and honestly is that they will be subject to multiple forms of bias and abuse.

One of the first responses of the Esperanza was to join with other arts organizations and to create the Arte es Vida campaign. The campaign focused on the importance of art to the lives of individuals and communities and asked people to send postcards to the City Council to express their support for public funding for the arts. As a direct result of this campaign, arts funding rose in the City Council’s list of priorities from 42nd (in 1997) to 10th (in 1998).

Meanwhile, during 1997 and 1998, Esperanza community members met in a series of weekly and then monthly meetings. Participants in these meetings worked hard to analyze the defunding in the context of ongoing progressive struggles in San Antonio. María Berriozábal shared insights from her ten-year experience on City Council and took community members on an "economic tour" to emphasize the lasting social, economic, and cultural effects of City governmental decisions. Petra Mata and Viola Cásares talked about their experiences in organizing Fuerza Unida and the frustrations they endured in their lawsuit against Levi Strauss. Dulce Benavídez shared the lessons she learned as organizer of the San Antonio Lesbian and Gay Assembly. Linda Morales and Terry Ramos talked of their experiences as AFL-CIO organizers working with Boeing workers. Mike Sánchez reported on his discussions with members of the carpenters’ union, and numerous other people shared their experiences and insights.

The Esperanza community considered the possibility of filing suit against the City of San Antonio and considered the risks of such action, particularly because we were aware of the costs and diversions of legal action experienced by the Civil Rights Movement in the 1960s. Through these discussions, the Esperanza community decided to file a lawsuit only if the legal claim would not distort the truth of the defunding and if the litigation could support a focused organizing and community education campaign.

By the spring of 1998, however, the Esperanza community had reached a consensus. We would file a federal lawsuit alleging an unconstitutional targeting of the Esperanza and we would undertake the Todos Somos Esperanza campaign, with door-to-door organizing, cafecitos throughout the city, teatro de la calle, and a variety of formal and informal pláticas and programs focusing on the importance of culture to the survival of oppressed communities and the obligation of government to support and protect the cultural expression of all of the city’s communities.

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Significance to long-term national and international struggle for cultural rights for minority communities

Central to the defunding of the Esperanza was the City’s lack of support for cultural expression in Latino and Black communities and its pervasive promotion of white, European-derived cultural norms and practices. The Mayor and City Council responded to Esperanza’s advocacy for Latino and African-American cultural rights by targeting it for defunding. This targeting was successful because of the power of homophobic attacks against the Esperanza. In both public and private justifications for the defunding, the Mayor insisted on the idea that art and politics are distinct. This idea of art is itself a product of European-American, middle- and upper-class cultural traditions and is quite different from the understanding of art in Latino communities in the United States and throughout Latin America. The City’s insistence on a separation between art and politics is an insistence on European-American culture to the exclusion of other cultures.

Distinguished art historian Tomás Ybarra Frausto, who appeared as an expert witness, explained: "Latin American art was born out of political struggle. As countless academics and artists have written, Latin American art for the last hundred and fifty years has been predominantly characterized by intense social concern. While much of European art has focused on the individual experience or on experience between the genders, the most important works of Latin American literature and much of its painting are concerned with social phenomena and political ideals. Art has been a critical vehicle for exploring social and national identity, political violence, racial and national integration both in Latin America and by Latinos in the United States."

Prior to 1995, courts in the United States routinely dismissed any claim regarding government arts funding. Most judges assumed that discretionary subsidies, which governments are not required to provide, were not subject to Constitutional review. This assumption was discredited in 1995, when the Supreme Court decided Rosenberger v. University of Virginia, which involved discretionary funding for student organizations. In addition, judges assumed that decisions regarding arts funding are inevitably subjective and therefore beyond rational review. This assumption was discredited by Finley v. NEA. Four artists – the "NEA 4" – brought suit in 1990 challenging the denial of their applications for grants from the National Endowment for the Arts. After the NEA reversed the denials, the case proceeded to the Supreme Court on a limited Constitutional challenge to legislation requiring the NEA to consider issues of "decency" in the evaluation of arts funding applications. The Supreme Court ruled against the four artists and found that the "decency" provision was not unconstitutional on its face (although the Court cautioned that it would be unconstitutional if applied in a discriminatory manner). Most importantly, however, the Supreme Court said that arts funding decisions are subject to Constitutional protections.

The Esperanza lawsuit was the first case filed after the Finley decision and it is the only case so far addressing issues of race and ethnicity in public arts funding. This is not because public arts funding does not impact artists and communities of color, but rather because prior to the Esperanza case, the law did not clearly recognize such claims and, perhaps, because lawyers have not pressed for recognition of such claims.

In Finley, for example, the four artists were all white, and the controversies focused on nudity, sexuality, and religious symbolism. The white lawyers representing the NEA-4 did not address the potential impact of the "decency" provision on artists or communities of color. Perhaps this was because the NEA-4, as white artists, were not directly impacted by racially and culturally-based views of decency and obscenity. Perhaps it was because the law did not readily recognize such claims or because, as white people, the lawyers did not see those issues. In the Brooklyn Museum case, the attacks on the individual artist, Chris Ofili, a Black Englishman who used traditional African forms and materials, clearly raised issues of race and ethnicity. Yet the white lawyers who represented the Brooklyn Museum chose not to raise those issues in the litigation and the media coverage largely ignored them.

Unlike Finley and Brooklyn Museum, the Esperanza case was shaped by the Esperanza community, including the Board of Directors, the Executive Director, the staff, and the several hundred people who met regularly during the weeks, months, and years following the defunding. The community insisted that the lawsuit set forth claims that accurately reflected the actual events and political dynamics that led to the defunding. Most importantly, the Esperanza community insisted on explicitly addressing the dynamics of race, class, and ethnicity as well as the issues of sexuality that led to the defunding. The Esperanza was targeted by the same impulses of control and exploitation that have led to white domination in San Antonio for generations. And for many in the Esperanza community, it would have been a betrayal of the struggles of our mothers and grandmothers to have silently endured these assaults.

The lawyers working with the Esperanza were challenged to shape claims and arguments that would accurately reflect the complexity of the defunding, including the race and ethnic dimensions. This was difficult, because the law of racial discrimination was severely limited by Reagan-era decisions. Further, the right to free speech, the center of First Amendment law, has been defined and elaborated as an individualistic, even class-based, privilege. The words to describe a group’s right of cultural expression and cultural integrity barely existed in First Amendment law.

When we researched the legal precedents, we were tempted to tell the defunding story as a simple case of anti-gay governmental action, because that claim has been successfully raised under free speech provisions. Moreover, that was the advise offered by national groups such as the ACLU, People for the American Way, the National Campaign for Freedom of Expression, and LAMBDA Legal Defense. As lawyers we are shaped by existing legal discourse and so it was difficult to find ways to speak the Esperanza’s experience. In addition, we knew that the formalities and practicalities of a courtroom trial would not allow us to tell the entire history of the Esperanza defunding. Every legal case requires that reality be simplified. We worried that if we simplified the story enough to prove our case, we would risk losing the complex truth.

Moreover, the core group of three lawyers who worked to shape the claims – Carol Bertsch, Mary Kenney, and me - are all white. Although Carmen Rumbaut, a Cubana, and Chicanas Elvia Arriola and Ilene García provided helpful guidance at the beginning and the trial team included Chicanas Isabel de la Riva, Denise Mejía, and Judy Sáenz (together with Lynn Coyle, a white attorney), most of the analysis, research, and drafting was done by white lawyers. We did not see the issues of race and ethnicity as clearly as other members of the Esperanza community. Because of this, we had difficulty knowing how to analyze the information we were collecting and how to present the evidence we had discovered.

Moreover, as we worked on the case, the Esperanza’s lawyers experienced a level of distancing and disrespect that was unfamiliar. This was most clear when we attempted to work with young white lawyers from the National ACLU. Although we were far more experienced than they and although we had been working on the case for two years before they worked with us, the young lawyers treated us as if we simply did not understand the law or the legal process. They not only resisted our efforts to shape the legal claims to reflect the Esperanza’s experiences, but throughout they acted as if we simply had not thought about the case and as if we simply did not understand the world. We were being treated as brown and black people are treated. Because we did not distance ourselves from our clients, we were treated as outsiders, in need of education and guidance. Through this experience and others like it, one can see the tremendous pressure on lawyers of all races to separate themselves from their poor, working class, lesbian or gay, black, or brown clients. Sadly, lawyers often give in to these pressures.

Finally, it was difficult to tell the story of the Esperanza defunding because of the wedge that had been driven between the Esperanza and other arts organizations and between the Esperanza and other Latino and African-American organizations. The virulence of homophobic attacks frightens everyone. Moreover, the racism in many exclusively lesbian and gay organizations causes many progressive groups to step away from issues of sexuality. In San Antonio, organizations that have supported the Esperanza’s cultural organizing were fearful and unwilling to challenge the City’s defunding of the Esperanza. Media coverage emphasizing right-wing attacks on the so-called "homosexual agenda" of the Esperanza aggravated these fears.

Despite these difficulties, the Esperanza community worked with the legal team to shape the lawsuit to reflect the actual story of the defunding and to name the racial and ethnic significance of the City’s arts funding decisions. The lawyers who worked with the Esperanza community came to understand the power of grassroots discussions of law and justice. Through the sometimes painful process of listening, agreeing, and disagreeing, we came to a much deeper understanding of race and ethnicity and the many differences among us. The community focused the lawsuit on issues of cultural integrity and held to this focus through the Todos Somos Esperanza campaign.

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Todos Somos Esperanza

The Todos Somos Esperanza campaign raised issues of public funding for cultural arts for discussion throughout the city. Thousands of people engaged in or with cafecitos, pláticas, street theater, yard signs, community meetings, bumper stickers, the community mock trial, and the evening vigil before the trial. The issues raised by the defunding were actively discussed by people in their homes, on the street, in community meetings, and at neighborhood gatherings.

The vitality and visibility of the Todos Somos Esperanza campaign was crucial to the lawsuit. The discussions engendered by Todos Somos Esperanza informed the legal strategy at every stage of the litigation. During the trial, the courtroom was packed with Esperanza supporters, old people and youth, gay and straight, women and men, brown, black, and white people.

We were lucky to have been assigned to Judge Orlando García (assignment of judges is done randomly). Judge García was raised in San Antonio and served as a state legislator prior to his appointment as a federal judge. Although reputed to be tough on lawyers, he is also known as intelligent, skillful, and hard-working. It was helpful that Judge García has a deep understanding of San Antonio and the importance of culture to the Mexican-American community. At the beginning of the trial, the first witness, Eduardo Díaz, used the word "quincañera" and quickly translated for himself: "that means a fifteenth birthday celebration." Judge García smiled and instructed the witness: "This is San Antonio," he said, "I don’t think you have to translate."

The next witness, Esperanza Executive Director Graciela Sánchez, identified herself as an out lesbian, a woman who had grown up working class in San Antonio’s westside. Graciela used numerous Spanish words as she testified about the work of the Esperanza, speaking in a bi-lingual weave that is familiar among Latinos in San Antonio. Judge García listened closely and the courtroom filled with the power of Spanish spoken openly, without translation, in the formal atmosphere of federal court. Graciela testified to the judge and to the community members. The determined, engaged presence of community members was essential to that moment.

Later in the trial, the community witnessed as Mayor Peak testified to his belief that art and politics are necessarily distinct. When asked whether a program like MujerArtes, in which low-income women learn to tell their stories through the art of ceramics, is an arts program or a political program, Mayor Peak responded that it could be either one, "depending on the program and what the purpose is, and what the people are that go through that program." At that moment, a collective gasp arose from the back of the courtroom as members of the community reacted to the unexamined racism in the Mayor’s statement.

With members of the Esperanza community present for the trial, the focus of Todos Somos Esperanza on issues of cultural integrity and public protection for cultural practices remained at the center of the legal strategy. And the visible interest of community members in the lawsuit brought home to the judge the importance of the case.

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Reflections on the Importance of Cultural Rights Such as those Raised in the Esperanza litigation

Throughout the world, minority communities are struggling for rights of cultural expression.

Sadly, the United States has opposed efforts for international recognition of cultural rights. Indeed, the United States is one of only a few nations in the world that have refused to ratify the International Covenant on Social, Economic, and Cultural Rights, which includes a strong statement of these rights. The United States’s opposition is based on the view – elaborated by Presidents Reagan and Bush – that human rights do not include group-based activities or any claim to public resources. As of this year, approximately one-hundred and forty-three countries have ratified the Covenant on Social, Economic, and Cultural Rights, including Mexico, Canada, most of South and Central America, and indeed most of the world. Sadly, the United States has refused to ratify the Covenant.

The Todos Somos Esperanza campaign has brought issues of cultural rights to a new focus in San Antonio. The Esperanza case takes a significant step towards recognition of cultural rights within U.S. law. As it has done so many times before, the Esperanza community joined together, with recognition of our many differences, and worked with strength, insight, and vision for a better world.

- Amy Kastely

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The following people and organizations spent long hours working on the Todos Somos Esperanza campaign and the Esperanza lawsuit. They have made countless contributions to the Esperanza community and to the people of San Antonio.