Courtesy of Anjana Malhotra
TUSD students and their legal team outside the 9th Circuit Court of Appeals in San Francisco on Monday, Jan. 12, 2015.
The 9th Circuit Court of Appeals in San Francisco has upheld most of the Arizona law that ended up banning the Mexican-American studies program. However, the ruling did say that portions of the statute violate the First Amendment, and that there are "genuine" issues regarding whether the enforcement of the law was "motivated at least in part by discriminatory intent."
The court ordered the latter to go to trial in the near future.
The law, enacted by the state Legislature in 2010, prohibits a school district or charter school from offering courses that: "1. Promote the overthrow of the U.S. government; 2. Promote resentment toward a race of class of people; 3. Are designed primarily for pupils of a particular ethnic group; 4. Or advocate for ethnic solidarity instead of the treatment of pupils as individuals."
Part 3 was declared unconstitutional because it violates the First Amendment, while the court said parts 2 and 4 "are not overbroad in violation of the First Amendment," and "are not vague in violation of the due process clause."
The case was originally filed in 2010 by ten Tucson Unified School District teachers and the director of TUSD's MAS program. The suit was later picked up by TUSD students, Maya Arce, Korina Lopez and Nicolas Dominguez (Lopez and Dominguez withdrew their appeal after they graduated high school, according to court documents).
Attorneys for both sides presented their arguments in January. At the time, I spoke with a member of the defense team, Anjana Malhotra, who said she felt they did well.
She said the court was concerned that the law was enforced regardless of the positive effects MAS has had on students. Several reports have proven that MAS accelerated student achievement and lowered drop-out rates.
From an email she wrote me in January:
In defending the Arizona ethnic studies ban passed for the purpose and effect of exclusively targeting and eliminating the highly successful TUSD’s Mexican American Studies classes, Ariziona made three major points in the Ninth Circuit argument today that undercut its argument that the law and its actions were unconstitutional.
First, Arizona repeatedly argued that the substantial academic achievement Mexican American students gained from taking MAS classes was 'irrelevant' to the facial and as-applied equal protection claims. To the contrary, and as the Judges correctly raised in questioning Arizona, the fact that the Arizona Legislature and Huppenthal exclusively eliminated classes that benefited Mexican Americans, and thus burdening Mexican Americans exclusively, is evidence of intentional discrimination supporting the argument that the statute and its enforcement violated the equal protection clause of the Fourteenth Amendment.
Second, Arizona argued that a Chinese American History class would violate the statute, regardless of content – demonstrating the impermissible and sweeping overbreadth, vagueness and equal protection problems with the law. This proposition gave the Court and the audience pause—and demonstrates how the statute gives the state unlimited power to enforce the law (and did) in an arbitrary and discriminatory manner violating the Supreme Court’s test for facial and as-applied vagueness. Further, given Tom Horne's and legislators’ express insistence that ARS 15-112’s use of the term “ethnic group” did not include to white or European ethnic groups such as Greeks and Romans, Arizona’s contention that it would ban Chinese American History, just as Mexican American classes regardless of content, establishes that the statute and enforcement is in direct violation of the equal protection clause of the Fourteenth Amendment by discriminating on the basis of race.
Superintendent of Public Instruction Diane Douglas said in a statement that her goal is to teach Arizona's children "appreciation not discrimination," and reassured that she is a supporter of the anti-MAS law.
“Holding a color palette to a child’s skin to determine which instruction they should receive is abhorrent in our society,” Douglas said. “If we are to stamp out racism and discrimination, shouldn’t we expand ethnic studies statewide and teach all children of all backgrounds an inclusive course of studies? What lesson do we teach if we design classes for our children based on their color or ethnic background?”
“If you look at (the law), it’s hard to see why anyone would want to teach any of that," she added. "As the country gets excited about the Confederate flag on the capitol in South Carolina, I don’t see why they also would not want to do away with academic segregation and teaching people by their ethnicity rather than as children under the laws of the land and in the sight of God.”
The MAS program was gutted by TUSD in 2012, as the district faced losing state funding. It was later replaced by the culturally relevant curriculum, which again got TUSD in trouble with the state back in January.
On his last day as schools superintendent, John Huppenthal sent TUSD a letter of noncompliance
, threatening the district to take 10 percent of monthly state aid, or about $14 million, if it did not fix the issues. Douglas allegedly did not have a problem with the content of the courses, rather the way teachers were implementing it in the classroom. (I sat through one of the classes that were red-flagged by Huppenthal
TUSD was given until March to fix whatever the state said was noncompliant. When the deadline arrived, Douglas announced TUSD had mended its wrongs, but that the state would continue to monitor these classes through the end of the school year
The Tucson Weekly later found out that significant changes had been made to the culturally relevant curriculum, according to Cholla High culturally relevant educator, Corey Jones. Jones taught U.S. history from a Mexican-American perspective at Cholla (he got in trouble for bringing Rage Against the Machine lyrics into the course). He was removed from the classroom the day representatives with the Arizona Department of Education were supposed to visit his class.
(He had a lot to say about what went down, and I wrote about that in Escape Goat