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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.



*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" are.

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 status.

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. [FN17]

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." [FN18]

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, and opportunity.

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 government.

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" quoted hereinbefore.

*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 for disease."
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 Rico have.

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.


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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