Law school professors pursue appeal of Tucson ethnic studies ban

April 09, 2013

Attorneys for two Tucson High School students have appealed a decision that upheld a ban on the acclaimed Mexican American Studies classes in their school district. Among their attorneys are Anjana Malhotra, co-director of Seattle University School of Law's Civil Rights Amicus and Advocacy Clinic, and Professor Robert Chang, executive director of the Fred T. Korematsu Center for Law and Equality. Students Kate Shipman, Ryan Dumm, Molly Matter, and Nathan Trudeau of the Civil Rights Amicus and Advocacy Clinic are assisting.

Students Maya Arce and Korina Lopez are plaintiffs in an ongoing legal battle over Arizona's ethnic studies ban. A law, HB 2281, was expressly enacted to eliminate Mexican American Studies (MAS) classes in the Tucson Unified School District (TUSD). It was passed in the same session as SB 1070, which prohibits school districts from offering classes designed for students of a particular ethnic group, teaching ethnic solidarity, promoting resentment, or promoting the overthrow of the U.S. government.

The appeal, filed with the U.S. Court of Appeals for the Ninth Circuit, challenges a March 8 federal district court decision that, while noting concerns about state officials' discriminatory motive, largely upheld the law and enforcement against the MAS program. Attorneys challenge the constitutionality of the state law under the First Amendment and the Fourteenth Amendment's Equal Protection and Due Process clauses. The appeal also argues that the state had no legal justification to eliminate the Mexican American Studies Program.

The court invalidated one provision of the law, which prohibited classes "designed for a particular ethnic group," finding it to be overbroad in violation of the First Amendment. It further noted concerns about discriminatory motives animating the bill, observing that "[t]his single-minded focus on terminating the [Mexican American studies] program, along with [Attorney General] Horne's decision not to issue findings against other ethnic studies programs, is at least suggestive of discriminatory intent." Nevertheless, the district court largely left the law, and its selective enforcement against MAS, intact.

Malhotra said the plaintiffs and the state of Arizona stand together opposing racism.

AnjanaMalhotra"Indeed, the curriculum was developed to redress decades of discrimination against Latino students and was successful because it was based on a pedagogy that promotes equality," she said. "The question here is more fundamental: whether the U.S. Constitution allows the state of Arizona to enact a broad, subjective and sweeping law giving state educational officials unlimited power, and then enforce it only to target and suppress an entire educational curriculum for Mexican American students."

TUSD adopted the nationally acclaimed MAS program in 1998 to address historic disparities for Latino students in the district, which has a student population that is nearly 60 percent Latino. By integrating Mexican American perspectives into core curriculum, emphasizing critical thinking, and building student confidence, the program was highly successful at substantially increasing graduation rates, state test scores, and college matriculation rates of Latino students above national and regional averages.

"Banning Mexican American books, ideas and classes only for Mexican American school children for no legitimate reason is illegal, and should not be allowed to continue in the state of Arizona," said Richard Martinez, an Arizona attorney who has represented the students since they began their legal struggle.

The program first came under attack in 2006, led by the state's former Superintendent of Public Instruction and now Attorney General Tom Horne. Horne worked with then state legislator John Huppenthal to introduce legislation to abolish the MAS program, saying it taught students to resent white people. Gov. Jan Brewer signed the bill in 2010, 20 days after she signed SB 1070, Arizona's anti-immigration law that is also being challenged in court.

Soon after the law went into effect, Huppenthal commissioned an audit by a nationally recognized independent educational agency, which found that MAS did not violate the new law and, in fact, suggested that the program be expanded and made available to more students. He rejected his own audit and found the MAS program in violation and levied a $14 million fine against TUSD. As a result, the state compelled TUSD to eliminate all MAS classes. To comply, TUSD also banned all educational materials and books.

Officials went into Tucson schools during the school day in front of students and "confiscated" seven books from the classrooms that were used in the curriculum. Among them were several best-selling classics including "Pedagogy of the Oppressed," by Paulo Freire, and "Rethinking Columbus: The Next 500 Years," by Bill Bigelow, "500 Years of Chicano History in Pictures," edited by Elizabeth Martinez, and "Critical Race Theory" by Richard Delgado, a professor at Seattle University School of Law.

The state took no action against TUSD's African American, pan-Asian and Native American studies programs.

Robert ChangA state commissioned audit, the National Education Association, and a range of nationally recognized experts establish the incredible value of the MAS program and make clear that Arizona had no real legitimate educational reasons to eliminate MAS," said Chang, who co-directs the clinic with Malhotra. "At a time when the nation is working toward improving graduation rates for Latino students, this kind of program should have been celebrated, not condemned. This appeal is especially important because HB 2281 may, like SB 1070, invite copycat legislation that will have a chilling effect on curricular innovation and programs to promote educational equity."

Curtis Acosta, a teacher in the program, said the ruling was disappointing.

"We hope the Court of Appeals will see the state's motives for what they are and not how the state portrays our program. Our classes denounce racism and promote cross-cultural understanding," he said.

"Our classes resuscitated hope in the public education for our students, inspiring many of them to attend college in pursuit of their dreams of forging a more just and loving world. And I am happy that at least for a few years, we were able to see those results. There is so much left to be done, however."

Sujal Shah, an attorney at Bingham McCutchen, which is also representing the plaintiffs, added: "The terms of the law raise serious constitutional issues, as it sweeps too far, uses unclear and imprecise terminology and provides no standards or definition, which invites arbitrary and discriminatory enforcement. We have seen that with Superintendent Huppenthal's selective enforcement against MAS, but if this law is upheld, nothing would prevent the next superintendent from selectively enforcing the law against other classes or programs designed to help close the education gap for other groups of students."

Other attorneys for the plaintiffs are Jennifer MikoLevine and Marcelo Quinones at Bingham McCutchen.