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Joanna DiMarco ZAPPA, Plaintiff
Hector Rivera CRUZ, et al, Defendants
No. CIV. 88-692 (JP)
United States District Court,
D. Puerto Rico.
Nov. 23, 1998
Examinee who failed real estate broker license examination
sued Real Estate Examining Board under § 1983, alleging that
Board violated her constitutional rights by making English version
of examination more difficult that Spanish version, and seeking
damages and injunction. The United States District Court for the
District of Puerto Rico granted injunction requiring Board to
issue broker's license to examinee, but denied examinee's later
request for trial on damages. Examinee appealed from order denying
trial on damages. The Court of Appeals, 20 F.3d 507, vacated and
remanded. On remand, the District Court, Pieras, J., held that:
(1) board members were not entitled to qualified immunity, and
(2) punitive damages and attorney fees were warranted.
Order in accordance with opinion.
VI. THE ISSUE OF CULTURE AS RELATED TO DEFENDANT'S ALLEGATIONS
*12 The facts of this unfortunate case and the arguments presented
by the parties raise a number of socially and politically important
issues. The Court feels compelled to address one in particular--a
matter concerning the culture of the Puerto Ricans vis-a-vis Latin
American culture. That issue is of particular importance in light
of Defendants' attorney's argument that the present administration,
whose policies and views on status differ from those of the administration
in power at the time the constitutional violations giving rise
to this case occurred, should not be punished for the former administration's
"bungling." See supra.
The specific matter to which the Court is referring, although
probably not truly susceptible to such succinct summarization,
has frequently been described as a question of culture. The party
in charge during the former administration, the Popular Democratic
Party ("PDP"), opposes Puerto Rico becoming a state.
The PDP justifies its position in large measure on the perceived
notion that Puerto Rico's is a "Latin American" culture,
distinguishable from and therefore somehow incompatible with U.S.
culture. The present administration on the other hand, that of
the New Progressive Party, believes that Puerto Rico and its citizens
have embraced and share the culture of the United States. To some
degree this schism reflects divergent views of the meaning of
the word "culture" and to some degree it reflects differing
notions of both Latin American culture and U.S. culture.
In any case, the Court finds the treatment afforded Plaintiffs
in this case by employees of the Puerto Rico government to be
a reflection of the ideology espoused by the PDP. It is an ideology
that creates an "us" and "them" view (which
often translates to an "us" versus "them"
view) of continental Americans in Puerto Rico. The dangers of
that ideology are on full display in this case. In the view of
the undersigned judge, it is an ideology premised on a misunderstanding
of what culture means and of what Puerto Rican and U.S. "culture"
Culture is an elusive concept, but taken in the context of
the issue at hand-- i.e., Puerto Rico's political status--the
Court considers that the relevant inquiry must be one of political
culture. Aspects of ethnic, linguistic, religious, or popular
culture are not fundamental, and are indeed irrelevant to the
matter of Puerto Rico's status vis a vis the United States.
That is so for several related reasons. First of all, such
classifications simply do not adequately define the people of
either Puerto Rico or the United States. The people of both comprise
many so-called cultures. To classify all Puerto Ricans as Spanish
or Catholic or to say that they all eat rice and beans and dance
salsa would be both ludicrous and insulting. What about Puerto
Ricans of Chinese descent, or English, or Corsican, or African,
or North American? Are they less Puerto Rican than those whose
great-grandfathers come from Valencia or Madrid? Clearly not.
Likewise, the United States is perhaps the greatest conglomeration
of cultures ever assembled under a single government. Although
often given the moniker, "melting pot," the United States
is perhaps better described as a mixing bowl, a place where many
"cultural" elements coexist to form a whole without
losing their individual flavors. Cultural diversity is part of
the essence of the nation, and no single ethnic, religious, linguistic,
or social characteristics can define its citizens.
A second, related reason why we must focus on political culture,
as opposed to a culture defined by other criteria, is that in
both Puerto Rico and the United States classifications based on
such criteria are considered wrong, both morally and legally.
Indeed, such classifications are wrong precisely because they
do not work. While the United States' record regarding the majority's
(particularly with respect to race and ethnicity) treatment of
minorities is far from unblemished, the nation as a whole has
generally strived to rise above such classifications, especially
during the last century. The people of Puerto Rico have similarly
denounced classifications based on race, ethnicity, religion,
and the like.
*13 Other aspects of so- called culture--the food we eat, the
music we listen to, the holidays we celebrate--in addition to
being insufficient bases for fully describing either Puerto Rican
or U.S. culture, are simply not significant to the question of
Would becoming a state prevent Puerto Ricans from enjoying
pasteles or arroz con gandules at Christmas time or from dancing
salsa or merengue ? Has living in the United States prevented
Irish- American Catholics from celebrating St. Patrick's Day or
Jewish-Americans from observing Passover and Yom Kippur? Have
Chinese-Americans not maintained their Chinatowns and Italian
Americans their Little Italies? More importantly, are there not
more relevant factors to consider in analyzing political status,
like economic opportunity, political stability, and a strong national
belief in the protection of individual liberties.
In an attempt to support the cultural incompatibility argument
against statehood without offending our sensitivities regarding
cultural diversity, some commentators have attempted to define
culture in more subtle ways. For example, Mayra Montero recently
wrote an article, entitled "La Luz del Espiritu," for
her weekly column in El Nuevo Dia, in which she attempted to correlate
nationality with cultural idiosyncrasies. Mayra Montero, Primer
Plano: La Luz del Espiritu, El Nuevo Dia, July 26, 1998, at 11.
Although certainly better written than most, [FN16] her article
typifies efforts of like-minded anti-statehood advocates. She
argues that nationality cannot be rejected or "changed like
a shirt;" if it could, the Berlin wall would never have come
down and the players of the Croatian soccer team would be playing
for Yugoslavia. Untrue.
Nationality can be changed. Clearly, on an individual level,
people emigrate all the time. How many Cubans and Dominicans have
moved to Puerto Rico this century? Do these people universally
remain Cuban or Dominican at heart, or do some grow to feel more
Puerto Rican? Do none of these emigres seek U.S. citizenship,
and of those that attain it, do none feel pride in their new status?
What about their children, who are raised as U.S. citizens in
Puerto Rico? Are they bound to retain the nationalities their
parents were born with? Even rudimentary consideration of her
position demonstrates its fallacy, at feast with respect to individuals.
But beyond the individual level, whole communities can change
nationalities. Throughout history, nations have assimilated into
other nations of their own free will. Consider Hawaii. Consider
the unifications of Italy and of Greece. The examples Ms. Montero
uses are of a nation forced to split and a nation forced to join,
not of their own free will, but by the will of others. East and
West Germany were split by Germany's enemies as a result of Germany's
defeat in World War II; Yugoslavia was formed into a federal republic,
also following World War II, under Russian control. Those examples
teach nothing about political unification made of the free will
of the people.
*14 Next, Ms. Montero argues that nationality derives from
being born, growing up, and maturing in a place in common; from
a shared way of laughing, crying, suffering, celebrating; from
familiar ideas and dreams; from a common form of expression, both
verbal and symbolic; all of which come not only from our experiences,
but from those of our progenitors.
But even if Puerto Rico could be described as a bundle of standard
idiosyncrasies--a notion that seems both unlikely and cruelly
unfair to those Puerto Ricans who do not share them-- can such
idiosyncrasies rightfully form the basis of nationality?
Even if such stereotyping were morally permissible, are the
people of Puerto Rico so narrow- minded as to reject political
union with those who do not share such shibboleths. Has the example
of the United States not taught the world that a multicultural
society is a national asset, not a basis for separation? Is the
attitude professed by Ms. Montero not, to some degree, the same
that has motivated "ethnic cleansing" in the republics
of the former Yugoslavia and in.several African nations?
And at what point does it end? People from San Juan have their
own eccentricities apart from those of people from Ponce who in
turn do not share all such mannerisms with the people of Isabela,
and so on. Even within San Juan, those who grow up in Punta Las
Marias probably will not communicate with one another exactly
the same way as those who grow up in Miramar or Old San Juan or
Stop 20. By Ms. Montero's reasoning, each municipality, or even
each neighborhood, comprises a nation unto itself.
Perhaps this is hyperbole, but the Court only wishes to demonstrate
the error of equating such characteristics with the concept of
nationality. The undersigned judge holds the more enlightened
view to be one encouraging people to strive to attain mutual political
goals while accepting, learning from, and embracing different
ways of laughing, crying, and celebrating, sharing the dreams
of others, and learning to communicate in other languages.
In the end, the culture that matters, that describes the way
in which people must be compatible in order for political union
between them to be possible, is political culture; that is, we
must focus on political culture when assessing the cultural compatibility
of Puerto Rico and the United States.
Even a brief analysis of political culture reveals that Puerto
Rico is more akin to the United States than to its Latin neighbors.
The political history of Latin America is one of dictatorship
and its concomitant evils, corruption and civil war. Deriving
from the notion of caudillismo--the distinctly Spanish philosophy
of the ordering of man and his universe under which the individual's
ego is so strong that it preempts broader concepts like community
or nation--Latin American political systems have been little more
than personality cults paying homage to political leaders, from
the conquistadors, like Pizarro and Cortes, to the leaders of
independence, like Bolivar and Hidalgo, to more recent heirs to
power like Santa Ana, Peron, Castro, and Pinochet.
Under political systems based on caudillismo, the governed
in Latin American have placed less importance on ideals like liberty
and justice than in the leader who is to incarnate those ideals.
And the governing dictators have, also in the spirit of caudillismo,
emphasized political separation over unity as a means of distinguishing
and aggrandizing their personae. Employing personalistic political
systems and elevating men over ideas have led to, in contrast
to the United States, nations of men, not laws. Witness Simon
Bolivar's message to the Bolivian congress, in which he lobbied
for the life-term presidency, and thus the legitimization of caudillismo:
*15 The President of the Republic shall come to be in our constitution
like the sun, fixed in this center, giving life to the universe.
This supreme authority ought to be perpetual, because in those
systems without hierarchies there must be, more than in others,
a fixed point around which the magistrates, the citizens, and
all the elements may revolve. Give me a fixed point, says the
ancient, and I will move the Earth.
Notwithstanding the fact that U.S.-style constitutions have
been adopted throughout Latin America, few Latin American leaders
have felt themselves bound by any constitutional restraints. The
result is a national history filled with poverty, suffering, repression,
corruption, sycophancy, torture, assassination, and death in the
field of battle. Ironically, this result was accurately predicted
by Bolivar himself when, commenting on the break-up of Greater
Columbia, he said, "this country will fall into the hands
of the rabble and then pass to the hands of lesser, ruffian tyrants."
In the United States, on the other hand, we have struggled
to ensure that both the letter and spirit of our Constitution,
and especially the guarantees of individual liberty contained
in the Bill of Rights, have been upheld and left unmolested by
the government. While we have not won every battle, as various
unhappy chapters in U.S. history attest, we continue to win the
war and the United States remains a bastion of liberty, justice,
The tenets of our political system are well-known and much
imitated--it is a government of "we the people," by
"we the people," and for "we the people."
The people have retained the power by limiting that of the government.
First, the Constitution enumerates the powers of the national
government, establishing a federal system under which the individual
states, within their jurisdictions, both share concurrent authority
with the national government and enjoy powers not given the national
Second, the enumerated powers of the national government are
divided amongst the legislative, the judicial, and the executive
branches. By that system of checks and balances, our founding
fathers ensured that those who might have in mind dictatorial
authority within the national government would be hobbled in any
attempt to consolidate power.
Third, and perhaps most importantly, the Constitution ensures
that certain individual liberties may not be infringed upon by
either the national or, via the Fourteenth Amendment, the state
governments. These individual liberties, aside from abridging
the governments' ability to impose upon individual citizens--e.g.,
by protecting freedom of religion, prohibiting the quartering
of troops and the taking property for public use without compensation,
and guaranteeing due process of law--enhance the citizenry's ability
to police the government--e.g., by protecting speech, press, the
right to assemble, and the right to bear arms.
Under this system, the citizens of the United States have the
right to pursue the ends they desire, subject only to the laws
created by those they elect, whose powers are cabined as described
by the Constitution. It is a reflection of our founding fathers'
philosophy, engendered in every U.S. citizen, and perhaps best
expressed by Abraham Lincoln, that "no man is good enough
to govern another without that other's consent," in stark
contrast to Simon Bolivar's philosophy of the "King Sun"
*16 Puerto Rico, discovered by Columbus during his second voyage
in 1493, remained a Spanish colony until 1898. Because Puerto
Rico continued under Spanish rule, it was spared the anarchy that
followed independence in most Latin American nations during the
nineteenth century. In 1898, following the Spanish- American war,
Puerto Rico was ceded to the United States.
Since the signing of the Treaty of Paris brought the war to
its end, Puerto Rico has remained a U.S. territory and its inhabitants
have lived under the Constitution of the United States of America.
During that time, Puerto Rico and its people have come to embrace
the United States Constitution and, in particular, the individual
liberties protected by the Bill of Rights. As a result, Puerto
Rico has broken, culturally, from its Latin roots over the last
one hundred years.
Comparisons illustrate that fact: while the people of Venezuela
have lived under the heels of various dictators, the U.S. citizens
of Puerto Rico have enjoyed due process of the law and equal protection
thereunder; while the mothers of desaparecidos wailed in the Buenos
Aires' plaza, protesting the killing of their sons and daughters
by the ruling junta, the U.S. citizens of Puerto Rico have freely
elected their governors, replacing four different administrations
since 1968. While communist guerrillas were plundering Nicaragua
following the reign of terror of a murderous dictator, young men
from Lares, Fajardo, Yauco, and Rincon, fighting as part of the
United States military alongside their brothers-in-arms from Baltimore,
Peoria, and Salt Lake City, have protected the world from Hitler,
Ho Chi Minh, Saddam Hussein, and others who would threaten the
principals of freedom embodied in the Bill of Rights; while Jesuit
priests were murdered in Central America for attempting to disseminate
ideas about personal liberty, U.S. citizens from Aguadilla, San
Lorenzo, and Humacao, availing themselves of the right to free
speech protected by the First Amendment, have expressed their
views without fear; while the poor and downtrodden throughout
Latin America have lived without hope of bettering their lot in
life as some of their leaders plundered their nations of resources
and wealth, the U.S. citizens of Puerto Rico have lived in hope
and security as part of a nation that, as Franklin D. Roosevelt
put it, judges its progress not by "whether we add more to
the abundance of those who have much, [but by] whether we provide
enough for those who have too little."
Perhaps the most telling comparison is between Puerto Rico
and Cuba, two Caribbean islands with nearly identical histories
up until the signing of the Treaty of Paris, when Cuba became
independent and Puerto Rico became a U.S. territory.
Since 1898, Cuba, without benefit of the United States Constitution,
has wallowed in poverty and corruption, mostly under dictatorial
rule. Throughout this century Cubans have fled by the thousands
to Puerto Rico and other places in the United States seeking political
and economic freedom. [FN19]
On the other hand, U.S. citizens throughout Puerto Rico have
prospered since the Treaty of Paris under the democratic-capitalist
system protected by the United States Constitution to achieve
a higher standard of living than any Latin American country, despite
having fewer natural resources than most. [FN20]
Puerto Rico's cultural ascent since becoming a part of the
United States is demonstrated in a recent article published in
The San Juan Star describing life in Puerto Rico at the end of
the nineteenth century. The article recounts the observations
made by historian Henry K. Carroll, special commissioner for the
United States in Puerto Rico, in his "Report on the Island
of Puerto Rico; its Population, Civil Government, Commerce, Industries,
Productions, Roads, Tariff, and Currency."
*17 To write the report, Carroll traveled the island, visiting
private homes, plantations, factories and anywhere else he could
get to in order to form not just a census portrait--the 1897 census
was provided to him by autonomist leader Luis Munoz Rivera--but
to get a sense of the island as a whole.
What he found was a population that was often living in squalor,
many dying of "starvation of the slow kind which gradually
saps the strength, weakens the willpower and prepares the way
Natalia de Cuba, Life in Late 19th Century Puerto Rico was Tough,
The San Juan Star, July 25, 1998, at 7.
De Cuba's article gathers in some detail the hardship Puerto
Ricans living on the island confronted on the eve of the twentieth
century, in areas such as labor, housing, and education. As narrated
by its author, the mass of the Puerto Rican workforce earned far
below living wages and did not enjoy the protection of labor laws,
which were virtually nonexistent. They lived in sub- standard
housing and confronted soaring rates of illiteracy. "Carroll
estimated that 80-85 percent of the population was illiterate...."
Id. Notwithstanding these conditions, Carroll considered the populace
to be full of untapped potential. "Porto Ricans have had
little opportunity to show their capacity," he wrote. Id.
Things in Puerto Rico have obviously changed for the better
since the island was ceded to the United States; in Cuba they
have not. Indeed, anyone wishing to see today conditions similar
to those described by Mr. Carroll in 1899 can find them throughout
Latin America. It is the espousal of the U.S. political culture
that finally provided Puerto Ricans with the "opportunity
to show their capacity"--an opportunity that the people of
Cuba and the other nations of Latin America have not been given,
at least not nearly to the extent the U.S. citizens of Puerto
Perhaps culture is best defined as how people act and think
in their everyday endeavors. In Puerto Rico, where the United
States Constitution has provided the framework for the way of
life for one hundred years, the people have become accustomed
to thinking and acting freely, knowing they are at liberty to
do so. In Puerto Rico, the people move in an atmosphere of their
own creation as free men under a government to which they have
delegated a limited power to govern; they live in a culture of
personal freedom. That culture of freedom has nothing in common
with any so-called Latin American culture and everything in common
with the culture of the United States.
In sum, the ideology which encouraged the Defendants to discriminate
against Plaintiffs in this case, and any ideology premised on
the notion that Puerto Rico's is a Latin American culture incompatible
with U.S. culture, misunderstands both the meaning of the culture
at issue and the true nature of both Latin American culture and
the culture of the United States.
The Court hereby ENTERS JUDGMENT for Plaintiff, Joanna DiMarco,
to have and recover and to be paid jointly and severally from
codefendants Maria Socorro- Cintron, Awilda Vilches-Reyes, and
Eddie Nieves, Mary Jo Gonzalez, Federico Cedo-Alzamora, and Eusebio
Cabanillas the sum of One Hundred Sixty-Eight Thousand Four Hundred
Fifty-Four Dollars and Forty-Three Cents ($168,454.43). Said amount
includes $89,404.43 for compensatory damages, including mental
and emotional suffering, $50,000.00 for punitive damages, and
$29,050.00, for attorney's fees plus costs and interests.
IT IS SO ORDERD, ADJUDGED AND DECREED.
In San Juan, Puerto Rico, this 23rd day of November, 1998
(s) Jaime Pieras, Jr.
JAIME PIERAS, JR., United States District Judge.
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