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TUSD loses ethnic studies appeal

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TUSD loses ethnic studies appeal

  • Demonstrators outside a TUSD board meeting, May 3.
    Kevin Asher/TucsonSentinel.comDemonstrators outside a TUSD board meeting, May 3.

TUSD's Mexican American Studies classes violated state law, a state administrative law judge ruled Tuesday, ruling that 10 percent of the district's funding may be withheld.

The judge "very clearly ruled against the district," said TUSD Superintendent John Pedicone. "We believed that we were in compliance."

The 37-page ruling by Lewis D. Kowal shot down an appeal by the Tucson Unified School District, affirming a June decision by state schools chief John Huppenthal that the district's MAS courses violate state law:

At issue is not whether the MAS program should be suspended, dismantled, or terminated, or whether the MAS program has achieved a certain level of academic success, or whether the MAS program is an effective program, or whether MAS classes are being taught in accordance with State standards.  

This hearing was held solely to determine whether Superintendent John Huppenthal’s June 15, 2011 determination that the Mexican American Studies (“MAS”) program in the Tucson Unified School District No. 1 (“District”) violates Arizona Revised Statutes (“A.R.S.”) §§ 15-112(A)(2) by promoting racial resentment, (A)(3) by being designed primarily for one ethnic group (Mexican Americans),1 or (A)(4) by advocating ethnic solidarity instead of treating pupils as individuals.  

Huppenthal will have 30 days to accept, reject or modify the ruling. Likewise, TUSD will have to decide whether to "appeal or abide by" the ruling, Pedicone said.

Complicating that decision is a vacant seat on the 5-member district Governing Board. With the current members split 2-2 on most issues dealing with ethnic studies, Pima County Superintendent of Schools Linda Arzoumanian has yet to fill the seat held by Judy Burns, who died in October.

An appointment may take place this week, Pedicone said.

"It's obviously bad for the district," said Governing Board member Mark Stegeman. "I'm a little surprised about how strong (the decision) was."

"I'd like to shut the program down and start over," said Stegeman, explaining that he supports the program's concept, but not its implementation. On a 3-2 vote, the Governing Board ousted Stegeman as board president in 2010 after he proposed revamping the program.

"The achievement gap (between low and middle-income students) is real. Some of the content is narrow and Euro-centric," he said. "Poor families, in poor neighborhoods, don't do as well. In our district, that means a lot of Latino kids."

The MAS program's status as a linchpin of a court-ordered desegregation program may tie the board's hands in making changes, Stegeman said. A federal appeals court ordered further oversight of TUSD's decades-long deseg efforts in July.

"We'd probably have to go back to the judge and have any modifications reviewed," he said.

Although MAS classes have continued this year without major changes, ignoring the ruling and losing funding "would be stupid on the part of the district," the superintendent said.

Kowal's ruling upheld every violation charged by the state, Pedicone said.

Of MAS history courses, Kowal said "teaching oppression objectively is quite different than actively presenting material in a biased, political, and emotionally charged manner, which is what occurred in MAS classes.  Teaching in such a manner promotes social or political activism against the white people, promotes racial resentment, and advocates ethnic solidarity, instead of treating pupils as individuals."

The judge discounted claims made in TUSD's appeal that the 2010 state law, pushed by then-Superintendent of Schools, now state Attorney General Tom Horne, is unconstitutional.

The law "has not been shown to have been declared unconstitutional by any court and the law must be given effect by this Tribunal," Kowal wrote.

The state may withhold 10 percent of TUSD's monthly funding until it brings its courses into compliance with the law, he wrote.

At risk is about $15 million annually, Pedicone said.

"If we appeal, we'll request the court to stay the penalty until the case is decided," he said. The state Department of Education has indicated that withheld funds may be paid out if the program is eventually found to comply with the law, Pedicone and Stegeman said.

Kowal's decision did not indicate what TUSD might do to bring its course in compliance with the law. During the hearings before him, the Education Department said the district must end the program, or rebuild it completely, for it to be in line with the law.

The fate of TUSD's funding rests with Huppenthal, who can determine whether to withhold the 10 percent.

"I will be issuing my final ruling regarding the matter in the near future after a thorough and deliberate review," he said in a news release Tuesday.

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