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Appeals Court Revives Challenge to Arizona's Ethnic Studies Ban

This post first appeared on the School Law blog.

By Mark Walsh

A federal appeals court has revived a key part of a legal challenge to a controversial Arizona law that prohibits a so-called ethnic studies curriculum, holding that there was evidence that state lawmakers had a "discriminatory intent" in passing the measure.

"Here, the legislative history of [the law] and the sequence of events (including the administrative history) leading to its enactment reasonably suggest an intent to discriminate," said the 2-1 decision by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

The court said it was without question that the 2010 state law targeted the Tucson Unified School District's Mexican-American Studies program. The program was first launched in 1998 and later expanded under the district's desegregation plan to teach the contributions of Mexican Americans. More than 60 percent of Tucson's enrollment is of Mexican or other Hispanic descent.

Some state officials objected to the program as promoting ethnocentrism and reverse racism, and they pushed for the state law that barred schools from including lessons that, among other things, "are designed primarily for pupils of a particular ethnic group."

Three successive state superintendents of public instruction in Arizona have pressed efforts to shut down Tucson's Mexican-American Studies program under the law, and the district ended the program in 2012 under threat of a loss of state funds.

A group of students and teachers sued in federal court, saying the state law and its enforcement violated their First Amendment free-speech right to receive information and their 14th Amendment right of equal protection.

A federal district court ruled in 2013 that the provision barring curriculum "designed primarily for pupils of a particular ethnic group" was overbroad under the First Amendment, but that it was severable from the rest of the law. The court largely upheld the rest of the law.

In a July 7 decision in Arce v. Douglas, the 9th Circuit court panel offered a mixed bag. It agreed with the district court that the "ethnic group" provision was unconstitutional under the First Amendment and severable, and it agreed with the lower court that other provisions could be upheld on summary judgment.

But it reversed the district court's ruling for the defendants on the lawsuit's equal-protection claims, holding that a trial was needed to weigh whether lawmakers or state education officials acted with a discriminatory intent.

The court said "one of the most telling actions in this entire saga" involved that of John Huppenthal, who supported the law as a legislator and in 2011 became the state's superintendent of public instruction. He commissioned a study of the Tucson program which found no evidence the Mexican-American Studies program was promoting resentment towards a race or class of people, nor that the classes were targeted to a particular ethnic group since they were open to all students.

Huppenthal rejected the findings of the study he had commissioned, the appeals court said, and conducted a separate investigation of the program focused on its curricular materials before concluding the program violated the state law.

"Whether the motivation behind Huppenthal's rejection of the [initial] report was based on its alleged deficiencies, or whether it was based on a predetermined intent to find the MAS program in violation of [the law], is a question for the fact-finder to decide," the appeals court said.

The dissenting judge agreed the equal-protection claim should be sent back to the lower court, but he disagreed that that issue necessarily had to go before a jury. U.S. Circuit Judge Richard R. Clifton said instead that he thought the district court judge could give more consideration to whether to decide the matter on summary judgment.

"The majority opinion conflates antipathy toward Tucson's Mexican American Studies program with animus toward Mexican-Americans more generally," Clifton said. "They are not the same."

Diane Douglas, who has since taken over from Huppenthal as state superintendent, issued a statement that says she continues to support the state law. 

"As the country gets excited about the Confederate flag on the capitol in South Carolina, I don't see why they also would not want to do away with academic segregation and teaching people by their ethnicity rather than as children under the laws of the land and in the sight of God," Douglas said in the statement.

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