Fighting Arizona's attack on ethnic studies

In May 2010, House Bill (H.B.) 2281 was signed into law by Governor Jan Brewer of Arizona. The law, since codified as A.R.S § 15-112, prohibits courses or classes that

• "[p]romote the overthrow of the United States government...
• [p]romote resentment toward a race or class of people;
• [a]re designed for pupils of a particular ethnic group; [or]
• [a]dvocate ethnic solidarity instead of treatment of pupils as individuals."

Enforcement of this statute led to the elimination of the highly successful Mexican American Studies (MAS) courses program in the Tucson Unified School District (TUSD) as well as the removal of books illuminating Mexican American history and perspectives from TUSD classrooms.

A group of teachers and students challenged the constitutionality of H.B. 2281 in federal court. Though the teachers were dismissed from the lawsuit, the students, Maya Arce, Korina Lopez, and Nicolas Dominguez, continued the challenge. (The plaintiffs have changed over the years as the student plaintiffs graduate from high school, and the current plaintiffs are Tucson sophomores Manuel Barcelo and Noah González and their fathers.) In March 2013, the district court declared subsection (3) above unconstitutionally overbroad, but granted summary judgment to the defendants on all of the students' other claims.

The students appealed to the United States Court of Appeals for the Ninth Circuit. On November 18, 2013, they filed their opening brief, arguing among other things, that the statute violates first amendment rights and the right to equal protection and is unconstitutionally overbroad and vague.

On November 25, 2013, six amicus briefs were filed supporting the students' appeal from an impressive group of individuals and organizations from across the country, including:

1. Authors of Books Banned from TUSD
2. National Education Association and Arizona Education Association
3. Freedom to Read Foundation, American Library Association, American Booksellers Foundation for Free Expression, Asian/Pacific American Librarians Association, Black Caucus of the American Library Association, Comic Book Legal Defense Fund, National Association for Ethnic Studies, National Coalition against Censorship, National Council of Teachers of English, and REFORMA
4. Chief Justice Earl Warren Institute on Law and Social Policy and the Anti-Defamation League
5. 48 Public School Teachers 
6. LatCrit, Inc.

The legal team that worked on the students' opening appellate brief included Richard Martinez of Tucson; Anjana Malhotra, formerly a clinical teaching fellow at the Korematsu Center and now Associate Professor at SUNY Buffalo Law School; Sujal Shah, Marcelo Quinones, and Jennifer MikoLevine who led a team of lawyers at the San Francisco and Los Angeles offices of Bingham McCutchen; and the Korematsu Center's Civil Rights Amicus and Advocacy Clinic. Professors Lorraine Bannai, Robert Chang, and Charlotte Garden led the efforts of the clinic. Students from the Spring 2012, Spring 2013, Fall 2013, and Spring 2014 clinics have  assisted on this case. Erwin Chemerinsky, Dean of the University of California, Irvine, School of Law, joined the students' legal team in October 2013.

The legal teams working on the amicus briefs included attorneys working pro bono from Jenner & Block; K & L Gates; Morrison Foerster; Orrick; and Perkins Coie.

Defendants' response/cross-appeal brief was filed on January 31, 2014.

Plaintiffs' Response and Reply was filed on June 2, 2014.

Defendants' Reply was filed on July 21, 2014.

Oral argument took place on January 12, 2015, in San Francisco, California. Dean Erwin Chemerinsky of UC Irvine argued on behalf of the Plaintiffs.

The Ninth Circuit agreed that students have a First Amendment right to receive information and ideas and that subsection (3) which could outlaw any ethnic studies course violated this First Amendment right. Though the panel agreed with the district court that the other provisions were not vague and overbroad, it reversed the grant of summary judgment against the students on their discrimination claims. It found that there was substantial evidence that the law was adopted and/or enforced out of discriminatory animus and directed that the students' equal protection discrimination claims be set for trial.