Arizona Raked Over the Coals|in 9th Circuit for Banning Ethnic Studies | Courthouse News Service
Wednesday, November 29, 2023
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Arizona Raked Over the Coals|in 9th Circuit for Banning Ethnic Studies

(CN) - Arizona's "discriminatory animus toward Mexican Americans" gave rise to its "vague and overbroad" ethnic-studies law, opponents told the 9th Circuit on Monday.

Passed in 2010 by the Arizona Legislature, the law prohibits the state's public schools from teaching classes that "promote the overthrow of the United States government; promote resentment toward a race or class of people; are designed primarily for pupils of a particular ethnic group; or advocate ethnic solidarity instead of the treatment of pupils as individuals."

The students challenging the law claim it was enacted primarily as a means to kill Tucson Unified School District's (TUSD) Mexican-American Studies (MAS) program. An administrative law judge found the classes violated the law in 2011, and the district scrapped the curriculum under threat of a huge cut in funding.

Representing the students at oral arguments before the 9th Circuit on Monday, attorney Erwin Chemerinsky noted that one of the law's prime movers had "campaigned for this law by saying that he wanted to stop La Raza" - "a synonym for the Mexican American people."

Chemrinsky said that former state school superintendents John Huppenthal and Tom Horne, both of whom helped pass the law and later found TUSD in violation of it, had ignored independent studies finding no such violations in the MAS curriculum, as well as years of data showing improved test scores and graduation rates among program participants.

Chermrinsky, a professor at the University of California, Irvine School of Law, told the appellate panel on Monday that only "discriminatory animus" can explain the officials' actions.

"The reason why the legislature adopted this, the reason why Horne and Huppenthal found violations, was a discriminatory animus toward Mexican Americans," he said.

Citing the "considerable deference that federal courts owe to the state's authority to regulate public school education," U.S. District Judge A. Wallace Tashima ruled for the state on most of the students' constitutional challenges to the law in 2013.

Tashima found one section of the law barring classes "designed primarily for pupils of a particular ethnic group," to be overbroad and ambiguous, but said it could be severed from the otherwise nondiscriminatory statute.

The state is using a cross-appeal to save that element of the law. Judge Richard Clifton asked Arizona Assistant Attorney General Leslie Kyman Cooper at Monday's hearing to clarify the state's interest in prohibiting such classes.

"The state is concerned that all of its students should receive the same foundational education, and should be taught as individuals, should not be divided on the basis of groups such as class and race," Cooper said.

U.S. District Judge Jed Rakoff, sitting on the panel in San Francisco by designation from the Manhattan, asked whether a course in San Francisco public schools on Chinese history would violate the law if it were designed to help "Chinese American students to understand their history."

Cooper said that this hypothetical "could be" in violation of the Arizona's law.

Judge Clifton countered by asking why the state seemed to be saying "we don't want minorities to develop any kind of ethnic pride?"

"I'm not sure that a public school's purpose needs to be to develop ethnic pride," Cooper said.

Cooper added that, considering that both the 9th and 5th circuits have previously ruled that "curriculum is government speech," Arizona has wide latitude to decide what is taught in its schools and how.

Some Mexican-American Studies and African-American Studies courses have recently returned to TUSD as part of the district's efforts to comply with a long-running desegregation lawsuit.

Huppenthal found those classes to be violation of the statute in a Jan. 2 letter, issued his last day in office.

Arguing that the law "interferes with the right of students to receive information," Chermrinsky, the plaintiff-students' attorney, said that it is too vague and broad to be constitutional.

"An English teacher with a predominantly African-American class who chose to teach Maya Angelou or Toni Morrison would run afoul of this statute," he said. "A music teacher who brought in rap lyrics or hip hop to African-American or Latino students, would violate this statute."

Diane Douglas, Arizona's new superintendent of Public Instruction, met with TUSD Superintendent H.T. Sanchez last week and later released a statement agreeing with Huppenthal's final-day findings but pledging to work with district to bring it into compliance with the law.

Meanwhile, the three-judge panel reserved judgment on the appeals.

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