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9th Circuit upholds parts of TUSD ethnic studies ban

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9th Circuit upholds parts of TUSD ethnic studies ban

Orders trial on discrimination claims

  • Chanting MAS supporters shut down an April 2012 TUSD Governing Board meeting as some zip-tied themselves together and a smoke bomb was set off. During the meeting, the board voted to fire Sean Arce, then the director of the program
    Will Seberger/TucsonSentinel.comChanting MAS supporters shut down an April 2012 TUSD Governing Board meeting as some zip-tied themselves together and a smoke bomb was set off. During the meeting, the board voted to fire Sean Arce, then the director of the program

A federal appeals court Tuesday upheld much of the controversial Arizona law that bans ethnic studies in public schools, including Tucson Unified School District's Mexican American Studies program. 

A three-judge panel with the 9th Circuit Court of Appeals in San Francisco issued the ruling, upholding most of a lower court's decision that the law enacted in 2010 by Arizona's Legislature is not overly broad and vague. The appellate court also upheld the district judge's ruling that portions of the law violate the First Amendment, yet ruled that did not invalidate the entire statute.

A second claim made by the plaintiffs that the law was enacted with discriminatory intent in violation of the Fourteenth Amendment will go back to the U.S. District Court in Arizona for trial.

The ruling reversed a lower court ruling that upheld HB 2281, the state law championed by former Attorney General Tom Horne and former state school Superintendent John Huppenthal that targeted the program.

Attorneys for both sides presented oral arguments for the court in San Francisco in January. 

In the ruling, U.S. District Court Judge Jed S. Rakoff wrote that there were "genuine issues of fact" that the enactment and enforcement of the ban was motivated in part by a discriminatory intent. 

"The parties do not dispute that the statute was enacted almost entirely with the MAS program in mind, and MAS was the first and only ethnic studies program that has been found to be in violation," Rakoff wrote.  

Enactment of the law led to repeated protests by students in the ethnic studies program, however, in January of 2012, the TUSD board elected to axe ethnic studies when state education officials threatened to withhold up to $15 million in funding for TUSD unless the program was dropped.

A new program, created after a federal judge overseeing the district's 40-year-old desegregation case ordered TUSD officials to enact "culturally relevant" curriculum. With the new curriculum in place, the lame-duck head of public education Huppenthal fired a last-minute shot at the district in January by sending out a public statement that the school district was not in compliance with an agreement made between the district and the Arizona Department of Education. 

The statement triggered a 60-day review of the program and included a threat that should TUSD run afoul of the agreement, the district could lose $14 million in state funding. 

After months of wrangling, the new Superintendent of Public Instruction, Diane Douglas, said that the program did not violate the law, but the state would continue to review TUSD's ethnic studies program.

Douglas said Tuesday that she "strongly" supports the law. "It’s hard to see why anyone would want to teach any of that," she said of bans on courses that promote the overthrow of the U.S. government, promote resentment toward a race or class, are designed primarily for pupils of a particular ethnic group or advocate ethnic solidarity.

"I will continue to move forward with my plan that all children in Arizona receive an inclusive educational experience that recognizes the greatness and the trials experienced by all ethnicities," the Republican schools chief said in a press release. "My goal is that the next generation will find such laws and court trials archaic because Arizona school children will learn of everyone's rich heritage and we will teach appreciation, not discrimination in our schools."

Attorneys for the students could not be reached for comment Tuesday and an official with the Tucson Unified School District said the district would not have a comment on the ruling.

The lawsuit began in October 2010, when 10 teachers and the director of TUSD's Mexican American Studies program sued over the ban of ethnic studies.

The teachers and students claimed the law violated their First Amendment free speech right and their 14th Amendment rights, among others. However, the court rejected the claims of the teachers and the director, arguing that they lacked the standing to sue.

Meanwhile, three students joined the suit, but ultimately, two voluntarily dismissed their appeals after graduating high school leaving Maya Acre, and her father Sean Acre as the only plaintiffs in the lawsuit against Douglas and the Arizona Board of Education.

In March 2013, a district court judge rejected most of the constitutional claims and let the law stand, granting summary judgment in favor of the state.

The appellate court panel agreed Tuesday with the lower court that the law was not discriminatory on its face, since its intent was to prohibit courses that promoted racism.

But the court said there is a “genuine issue of fact as to whether the statute was enacted and/or enforced with discriminatory intent.”

The court pointed to statements by lawmakers during hearings on the bill that the Mexican American Studies program was creating “racial warfare” and the program’s supporters included groups that said “North America is a land for the bronze peoples.”

While the the legislative history behind the bill “contains only a few snippets of overtly discriminatory expression,” said the opinion written by Judge Jed S. Rakoff, it is enough to “reasonably suggest an intent to discriminate.”

The court ordered a new hearing at the district court on whether discriminatory intent existed in the passage of the law.

In a partial dissent, Judge Richard R. Clifton said he concurred with the majority’s decision to send the issue back to the lower court.

But Clifton said he did not agree that the plaintiffs had presented sufficient evidence “to raise a genuine dispute as to whether the enactment and/or enforcement of the statute ‘was motivated, at least in part, by an intent to discriminate against MAS students on the basis of their race or national origin.’”

Cronkite News reporter Soyenixe Lopez contributed to this story.

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