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Updated Mar 9, 2013, 5:41 pm Originally posted Mar 9, 2013, 2:59 pm
A federal judge upheld most of an Arizona law that targeted Tucson Unified School District's Mexican American Studies program, saying the measure does not infringe on freedom of speech or place unconstitutional burdens on school curriculum.
The decision is a "good outcome for the district," TUSD Governing Board member Mark Stegeman said Saturday, as it struck down a provision that came closest to conflicting with a recently imposed desegregation plan.
A group of former MAS administrators, teachers and students filed suit over the 2010 law, a measure which was backed by state Republican officials, including then Superintendent of Public Instruction, now Attorney General, Tom Horne and current state schools chief John Huppenthal.
While the teachers and administrators were dismissed as plaintiffs a year ago because, as state employees, they lacked standing to sue, the case was allowed to continue when a student intervened.
Judge A. Wallace Tashima, a senior appeals court judge sitting on a district court case, denied the basis for most of the plaintiffs' claims.
In a 31-page decision, Tashima said that the state can limit curriculum without impinging on students' rights to free speech, and said the law was not drawn up and enforced with discriminatory intent.
"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," he wrote.
The judge did write that Horne's "single-minded focus on terminating the MAS program" and "decision not to issue findings against other ethnic studies programs, is at least suggestive of discriminatory intent," but said there was insufficient proof of discrimination.
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TUSD Governing Board member Kristel Foster said Saturday that the law "was about politics, not pedagogy," a perspective echoed by Board member Cam Juarez.
The law was a "political opportunity" for the two GOP candidates, Juarez said in an interview. Foster said Horne and Huppenthal seized on MAS to leverage a Pima County issue with Maricopa County voters.
In Friday's ruling, Tashima also denied a First Amendment challenge to the law.
"Read as a whole, the statute does not proscribe the rights of students to speak freely in the classroom," he wrote. "Nowhere does the statute expressly limit what a student may or may not say; moreover, the penalty provision is directed exclusively at school districts that are in violation..."
The judge held that the state has a "legitimate pedagogical interest" in "lessening racial or class animus in the schools" and "limiting curricula that tend to encourage the overthrow of the United States government."
Tashima declared that a provision that prohibited courses that "are designed primarily for pupils of a particular ethnic group" is unconstitutional., calling it "problematic" and that it "likely would chill the teaching of legitimate ethnic studies courses."
The provision certainly is not an outright ban on ethnic studies courses because such courses are not solely for the benefit of members of the ethnicity being studied. But the provision’s broad and ambiguous wording could deter school districts from teaching ethnic studies.
Also upheld was a provision that bars classes which "advocate ethnic solidarity instead of the treatment of pupils as individuals."
The plaintiffs' attorney, Richard Martinez, could not be reached for comment on the ruling.
A ruling last month by U.S. District Judge David Bury imposed a new desegregation plan on TUSD that in part requires "culturally relevant" courses for Latino students.
The district will be able to thread between the parts of the state law that were upheld and the Unitary Status Plan, TUSD Board members said.
"Now we don't have to figure out how to offer courses that are trying to be culturally relevant for different groups without designing them primarily for pupils of a particular ethnic group, which was on its face a narrow channel to navigate," Stegeman said in an email.
TUSD is working with officials at the Arizona Department of Education to develop a new ethnic studies curriculum, Foster said. That process will mitigate the risk of the state stepping in to declare the new courses in violation, she said.
"I don't think there's any way we won't be teaching kids about their culture," Juarez said.
The proposed courses will be made available for public comment before being implemented, he said.
Juarez rejected a 2011 finding by a state administrative law judge that the previous courses should have been ended.
"None of our students were taught to impede the government; they were taught to be critical," he said.
Juarez said he's confident that the revamped program will "do exactly what MAS courses ever set out to do ... not just educate, but inspire our kids to learn."
Horne's history of MAS opposition
The primary opponent of TUSD's ethnic studies program has been former schools chief Tom Horne.
Horne pushed for a law effectively banning the courses after a 2006 incident at Tucson High.
After activist Dolores Huerta gave a speech to students, commenting that "Republicans hate Latinos," Horne sent his deputy superintendent to speak at the high school.
Margaret Dugan, a Latina Republican, rebutted Huerta's remarks, and was met by students who turned their backs on her and raised their fists in the air as she spoke, protesting that Dugan wouldn't take student questions.
Both Horne and Dugan referred to the incident whenever discussing TUSD's MAS program, calling it a result of students' classroom instruction.
After years of work, Horne helped push a law affecting the program —HB 2281— through the Legislature in 2010. In his last days as state schools chief, he declared that TUSD was in violation.
Huppenthal announced he would conduct his own investigation into the program when he took office in January 2011. Although a state-ordered independent audit found that TUSD was not violating the law, Huppenthal declared that MAS courses were in violation and that TUSD could lose 10 percent of its budget in punishment. That finding was later upheld by a state administrative judge.
Created to help desegregate Tucson schools
TUSD created the various ethnic studies courses — including Mexican-American, African American, Native American, and Pan Asian studies courses — as part of a "unitary status" agreement that ended court supervision of TUSD's desegregation programs.
The courses began 15 years ago. A federal judge lifted oversight in 2008, but TUSD agreed to maintain the classes and other desegregation programs developed during three decades of court supervision.
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A federal appeals court reversed the decision to end court supervision of TUSD's desegregation efforts, sending the case back to Judge Bury.
Mexican-American Studies classes included alternatives to traditional history, literature and art courses.
Supporters have said the classes lead to increased student involvement in school and higher graduation rates.
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