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Students, Not Teachers, Can Fight Ban on Ethnic Studies

TUCSON, Ariz. (CN) - Two students who wanted to take classes in the Tucson Unified School District's embattled Mexican-American studies program can challenge a new Arizona law that bans teaching "ethnic solidarity," a federal judge ruled Tuesday.

U.S. District Judge A. Wallace Tashima made his ruling on the same day that the TUSD governing board voted 4-1 to scrap the program.

Arizona had promised to cut millions of dollars in state funding if the board had refused to do so. Board members said they would try to overhaul the program to make it comply with the law.

Arizona Superintendent of Public Instruction John Huppenthal forced the board's hand last week when he ruled, for the second time since taking office last year, that the 12-year-old program violated a law passed by the state Legislature in 2010 that prohibits public school district's from offering classes that "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."

A group of 10 teachers, the program's director and two students sued the state to stop the law, calling it unconstitutional and racist. They sought a preliminary injunction, while Huppenthal moved to dismiss the lawsuit.

Noting that the 9th Circuit recently rejected a California math teacher's bid to hang large banners expressing his religious views in his classroom, Judge Tashima said that teachers, as public employees, do not have a First Amendment right to challenge their employers' decisions, or even to "speak within the classroom."

"Even assuming that plaintiff teachers could establish standing based solely on allegations of 'subjective chill,' plaintiff teachers have failed to demonstrate that they have a protected First Amendment right to speak within the classroom," Tashima wrote.

"It is undeniable that speech made while teaching, which is at issue in this case, is part of a teacher's 'official duties,'" he added. "Thus, the free speech rights for which plaintiff teachers here argue are squarely within their role as public employees. Plaintiff teachers have no protected right to speak as teachers, either within or outside of the curriculum in the classroom."

Tashima also rejected the teachers' argument that Arizona's law, if allowed to stand, would unfairly put them out of work.

"Even if the MAS program is eliminated entirely as a result of the superintendent's finding, it remains TUSD's independent decision whether to fire or retain the employees currently administering or teaching within the MAS program," Tashima wrote. "Although [state law] provides that school districts may not provide employment retention priority for teachers based on tenure or seniority, the record does not include any further information about TUSD's teacher personnel policies. There is no allegation in the complaint that plaintiff teachers are solely qualified to teach MAS classes; they could very well be assigned to teach other classes within the school district. Moreover, if the TUSD opts to eliminate the MAS program in its entirely (sic), the budgetary support previously provided to that program will be available for whatever courses and faculty are to replace those courses. Even if it could terminate the Plaintiff teachers, TUSD may choose to retain them to teach the replacement courses. The Court has no inkling of what the TUSD may choose to do from among its options, nor how that choice may affect the plaintiff teachers' employment. As a result, the Court concludes that Plaintiff teachers, including Director Arce, do not have standing based on the hypothetical threat to their employment."

Tashima took a different view of the two student plaintiffs' standing, but he nevertheless refused to enjoin the law.

"The students here have made a plausible showing of a First Amendment violation based on allegations in the complaint that viewpoint-discriminatory criteria are being used to remove certain texts and materials from the MAS curriculum, which represent 'willing speakers' to which the students would have otherwise been exposed," Tashima wrote.

"While at some point in the future the students may be able to make a stronger showing that irreparable harm is likely, at this point in time, the range of possible alternative actions that TUSD may take is so wide that predicting what course it will follow amounts to no more than sheer speculation," he added. "Such speculative possibilities cannot support a showing of likely irreparable harm."

In light of the district's decision to cancel the program, the plaintiffs' attorney, Richard Martinez, told Courthouse News on Wednesday that his clients plan to sue that body as well. Whether he will add the district to the current lawsuit or file a separate complaint remains to be seen.

Martinez says this development may also require Tashima to reconsider the teachers' standing.

No matter what, "the case goes forward," he said.

In apparent anticipation of the board's decision and Tashima's ruling, Martinez filed a motion in late December for the intervention of Margarita Dominguez and her 18-year-old son, Nicholas, who was enrolled in three Mexican-American studies classes prior to their cancellation on Tuesday.

"Mr. Dominguez as a Tucson High student has taken advantage of the unique opportunity presented to all Tucson High students, including Latino students, who represent 67 percent of the student body, to learn of Mexican-American contributions and influence on the literature, history, government and culture of the United States," the motion states. "As a senior, the semester that begins on January 3, 2012 represents Mr. Dominguez' last opportunity to take MAS classes in high school. In his attempt to eliminate the MAS program, Superintendent Huppenthal specifically targets Mr. Dominguez and the all other Latino MAS students."

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