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Judge: Most of anti-Ethnic Studies law stands

Part of 2010 Az law declared unconstitutional

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.

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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.

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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Latest comments on this storyRead all 4 »

Mar 13, 2013, 9:44 pm
-1 +0

This is not political at all. In 2007 an investigation was done and many of their books & teaching materials were exposed such as: “Message to Aztlan” (by Rodolfo “Corky” Gonzales that says “We must destroy capitalism” and has poems telling the kids to make a Revolution on the U.S.; “Occupied America” (5th Edition) with “quotes” such as “Kill the gr-ngo” and “execute all white males over age 16” and makes the U.S. out to be an evil perpetrator as so many of their books. Read “The Spiritual Plan of Aztlan” where they talk about “using schools as defense posts”. One book calls blacks by the “n” word. Children have been beaten, almost blinded and almost murdered because of these radical teachings. Tom Horne wants to take the “hate” and “revolution” out of our schools. And Krystel Foster knows what’s in the books, she has seen them. And tons of these books have filthy curse words (the “f” word, the “sh” word, etc., etc.). MEXICO HAS A PLAN TO TAKE OVER FIRST THE SW & THEN THE NATION (if they can do it) and will call the SW what they call their movement “Aztlan”. They can’t even take care of their own country which is a failure!

Mar 9, 2013, 6:58 pm
-0 +1

It is sad. I would love to discuss this subject, but it is a topic that no matter what you say (type), someone will be offended and call you a racist.  I will say that as important as our collective history is to know where we’ve been to do better where we are heading, reading, writing, and math are the subjects our AZ students need to be the most proficient….then American civics since they will be voters when they turn 18.  Everything…and I think everything else is gravy till those skills/subjects are mastered.

Mar 9, 2013, 6:50 pm
-0 +1

@Bret Linden

The legislative record and Horne’s statements as he backed the bill through the Legislature show very clearly that the law was targeted at TUSD. It didn’t appear out of thin air; Horne charged at the district after the 2006 incident at Tucson High.

From the decision:

Horne sought to “eliminate” the MAS program as early as 2007, when he wrote an “Open Letter to the Citizens of Tucson” explaining his disagreement with the MAS teachings. (PSOFO, Doc. 162, Ex. E.) When Horne’s informal effort failed, he became the driving force behind the enactment of § 15-112. He spoke at the relevant Arizona legislative committee hearing and stated unequivocally that his support for the bill arose from his concerns about the MAS program.

Defendants do not dispute that § 15-112 was passed in response to complaints about the MAS program. Indeed, the testimony before the Senate Committee confirms that this was the case.

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15-112. Prohibited courses and classes; enforcement

A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:

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.

4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

B. If the state board of education or the superintendent of public instruction determines that a school district or charter school is in violation of subsection A, the state board of education or the superintendent of public instruction shall notify the school district or charter school that it is in violation of subsection A. If the state board of education or the superintendent of public instruction determines that the school district or charter school has failed to comply with subsection A within sixty days after a notice has been issued pursuant to this subsection, the state board of education or the superintendent of public instruction may direct the department of education to withhold up to ten per cent of the monthly apportionment of state aid that would otherwise be due the school district or charter school. The department of education shall adjust the school district or charter school's apportionment accordingly. When the state board of education or the superintendent of public instruction determines that the school district or charter school is in compliance with subsection A, the department of education shall restore the full amount of state aid payments to the school district or charter school.

C. The department of education shall pay for all expenses of a hearing conducted pursuant to this section.

D. Actions taken under this section are subject to appeal pursuant to title 41, chapter 6, article 10.

E. This section shall not be construed to restrict or prohibit:

1. Courses or classes for Native American pupils that are required to comply with federal law.

2. The grouping of pupils according to academic performance, including capability in the English language, that may result in a disparate impact by ethnicity.

3. Courses or classes that include the history of any ethnic group and that are open to all students, unless the course or class violates subsection A.

4. Courses or classes that include the discussion of controversial aspects of history.

F. 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.


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