(CN) - Hoping to intervene in a 40-year-old desegregation case, Arizona told the 9th Circuit that bringing ethnic studies to public schools could divide children racially.
Fisher and Mendoza v. TUSD, a desegregation case involving the Tucson Unified School District, has been alive in federal court since 1974.
Its plaintiffs returned to court in 2011 after the district used a new law to ban a Mexican-American Studies program in Tucson. The law takes aim at classes that promote "the overthrow of the United States government"; "resentment towards a race or class of people"; and "ethnic solidarity instead of the treatment of pupils as individuals."
Dr. Willis Hawley, a court-appointed special master, persuaded the judge in charge of the Fisher and Mendoza to have the district develop new ethnic-studies curricula.
With the program still in development, beginning with public high schools in Tucson, the 9th Circuit will meet in January to determine the fate of Arizona ethnic-studies ban.
The judge in charge of the desegregation case has meanwhile rejected two bids by Arizona intervene in that case.
A three-judge panel of the 9th Circuit met Wednesday based on Arizona's claim that its invention would "ensure that classes required ... met academic standards, complied with Arizona law, and did not foster resegregation along ethnic and racial lines."
Arizona Solicitor General Robert Ellman told the three-judge panel in San Francisco that TUSD cannot represent the state's interests in the case.
"Arizona opposed the culturally relevant curricula because it believed that it exceeded the scope of the federal courts authority, but the Tucson Unified School District changed its position and now embraces that culturally relevant curricula requirement," he said. "Tucson Unified School District, respectfully, has no stake in protecting the scope of the state's prerogative to set its own education policy."
For Ellman, the fact that TUSD's governing board agrees with the special master shows that the district and state have divergent interests. He also said that the court exceeded its jurisdiction in approving an education policy, which is the state's job.
"The idea that requiring culturally relevant curricula doesn't actually impair any Arizona interests is palpably wrong," Ellman said. "Because, now that you have an order from the District Court that actually requires the school district to adopt it, there has already been an encroachment on the state's education policy prerogative. So the damage is already done."
Arguing for the school district, Thomas Saenz, an attorney with the Mexican American Legal Defense and Educational Fun, said that, for all its talk of sovereignty, the state had been "decidedly inattentive ... [to a] decision ... to delegate through statute by the Legislature, decisions over curriculum development to school districts."
"The problem with the state's intervention at this point is that it would unduly delay the further progress of this now 40-year-case, because they are taking a position, we believe an extreme position, that any and all ethnic studies curriculum violates the state law," Saenz said. "We don't think that's an appropriate reading of the state law, but this is not the appropriate venue to decide. The District Court is not the appropriate venue to decide."
Justice Department attorney Holly Thomas told the panel that Arizona has no "protectable interest in this suit."
"But even if it did, that interest is not impaired by denial of intervention here," Thomas argued. "Arizona expressed an interest in ensuring that the ethnic-studies curricula in the unitary status plan did not violate state law. That interest is both remote and it's speculative, and therefore does not meet the requirements for intervention."
She added that the "Mexican-American studies program that Arizona repeatedly talks about in its pleadings was canceled by TUSD. It has not been resurrected, and indeed the District Court has made clear that that program will not be reinstated."
Poking holes in this remark, Judge Morgan Christen noted that an ethnic-studies program is in development per the special master's decision.
Both the United States and Arizona filed briefs with the 9th Circuit.
Thomas conceded that but still found it "purely speculative that those courses will violate Arizona statue."
"So what happens if they do adopt something like that, then what does the state do?" Christen asked.
"If the time comes that the state feels that any ethnically relevant curricula violates state law, it is free to intervene again in the future," Thomas said.
Judges Stephen Reinhardt and Sidney Thomas rounded out the panel, which also heard arguments Wednesday related to TUSD's claims that unrelated issues in the long-running desegregation case are "being approached in an almost whimsical, or at least certainly haphazard, fashion by the court."
TUSD argued that the trial court, in approving all of the special master's recent recommendations in the case, had "abdicated its role as the decision-maker."
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