Mexican Studies Claim Revived by Ninth Circuit

     (CN) – Arizona’s ban on ethnic studies in public schools was not overbroad, but may have violated students’ equal protection rights, the Ninth Circuit ruled Tuesday.
     The Arizona Legislature passed House Bill 2281 in 2010, prohibiting a school district or charter school from providing classes that: “(1) promote the overthrow of the United States government, (2) promote resentment toward a race or class of people, (3) are designed primarily for pupils of a particular ethnic group, or (4) advocate ethnic solidarity instead of the treatment of pupils as individuals.”
     Just ahead of its passage, Arizona’s then superintendent of public instruction, Tom Horne, and Arizona legislators had complained that the Tucson Unified School District’s Mexican-American studies program promoted ethnocentrism and racism toward Caucasians.
     The district – which is made up of about 60 percent Mexican students or students of Hispanic descent – began offering the program for children with “a natural interest in knowing more about their cultural heritage and that of their community.”
     TUSD teachers and students unhappy with the legislation filed suit in U.S. District Court for the District of Arizona, but Ninth Circuit Judge A. Wallace Tashima dismissed most claims in 2013.
     “Considering the record as a whole, and even drawing all reasonable inferences in plaintiffs’ favor, plaintiffs have not shown that defendants acted with discriminatory intent,” wrote Tashima, who presided over the case by designation. “Although some aspects of the record may be viewed to spark suspicion that the Latino population has been improperly targeted, on the whole, the evidence indicates that defendants targeted the MAS program, not Latino students, teachers, or community members who supported or participated in the program.”
     A three-judge panel of the Ninth Circuit largely affirmed Tuesday, seeing nothing overbroad in a provision of the statute relating to promoting resentment toward a race.
     “We agree with the District Court that the provision on its face is not overbroad in violation of the First Amendment, because the statute targets the design and implementation of courses and curricula and does not restrict individual student speech or class discussions,” says the ruling, written for the panel by U.S. District Judge Jed Rakoff, sitting by designation from Manhattan.
     Finding that the statute was not crafted to deny students access to certain information, Rakoff noted its inclusion of a provision that says “nothing in this section shall be construed to restrict or prohibit the instruction of the holocaust, any other instance of genocide, or the historical oppression of a particular group of people based on ethnicity, race, or class.”
     “It would be inappropriate for us to read the statute more broadly to find that this provision unconstitutionally prohibits courses that unintentionally promote resentment, as the provision is readily susceptible to the more narrow construction we have identified,” Rakoff found.
     The panel did, however, revive claims that the law violates the equal-protection rights of students.
     On this point, Tashima had found for Arizona sua sponte during the preliminary injunction stage, depriving “plaintiffs of the opportunity to submit additional evidence and argument on the merits of their equal protection claim,” Rakoff wrote.
     The plaintiffs will now be able to present their evidence at trial to determine whether legislators enacted the statute with a discriminatory intent.
     Though Rakoff remanded the equal-protection claim for trial, Judge Richard Clifton wrote in partial dissent that this claim should have been remanded for further proceedings, without precluding further consideration of summary judgment.     
     “Holding a color palette to a child’s skin to determine which instruction they should receive is abhorrent in our society,” Arizona Superintendent of Public Instruction Diane Douglas said in a statement. “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?”
     Erwin Chemerinsky, dean of the School of Law at University of California, Irvine and an attorney for plaintiffs, was not immediately available for comment.

%d bloggers like this: