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| MAS student work, caption translation: envision the star of the state to come |
In TUSD’s appeal of the finding of noncompliance with Arizona law 15-112, commonly referred to as HB 2281, by the Arizona Superintendent of Public Instruction, John Huppenthal, the declaration by Mexican American Studies teacher Sally Rusk was entered into evidence by the state.
Her declaration became relevant to the state’s case when TUSD Governing Board member Mark Stegeman testified that a teacher in the district had sent him a copy of a piece of art work produced in her class. The teacher expressed concern to Stegeman due to the fact that the student artist depicted the Arizona Flag with its star replaced by a swastika.
In her declaration Rusk admits that indeed the work was produced in her class, and states that she no longer exhibits students’ work due to the scrutiny directed at the classes. She claims that she “fears the scrutiny that my students and I are under as a result of the enforcement of HB2281.”
The classes and curriculum will now be scrutinized Judge Lewis Kowal along with the parties’ closing arguments. Judge Lewis Kowal received the closing arguments on November 18, and his finding in the matter is expected sometime around December 15.
Judge Lewis Kowal received the closing arguments in TUSD’s appeal of the finding of noncompliance with Arizona law 15-112, commonly referred to as HB 2281, by the Arizona Superintendent of Public Instruction, John Huppenthal. The judge’s finding in the matter is expected sometime around December 15.
The district appealed the finding that TUSD’s Mexican American Studies classes are designed primarily for pupils of a particular ethnic group, promote resentment towards a race or class of people, and advocate ethnic solidarity instead of the treatment of pupils as individuals in violation of the law.
The Tucson Unified School District’s involvement in the development of and support for the very law it violated, is a large part of the state’s case against the district.
When the Arizona legislature‘s Committee on Education began to develop HB 2281 in 2009, the Tucson Unified School District sent a representative to testify in favor of an amendment to the bill. On November 18, 2011, Tucson Unified School District attempted to argue that the same law in which they had a hand in writing, and once supported is now flawed.
In 2009, TUSD’s representative Mr. Polito, told the legislature that the amended HB 2281 “clears up many problems and was reviewed by the school district‘s attorney” according to court documents. At the time, “Mr. Polito confirmed that the District did not want to teach the kinds of hatred and separatism that HB 2281 intended to prohibit.”
Two years later in support of that position, just prior to the day the law would become effective, the TUSD Governing Board under the leadership of Judy Burns, passed a resolution to comply with the law. It is now, and it has been the “District‘s official position that its MAS program has never been operated in a manner that would violate the law,” according to the record.
Despite this, the district’s attorneys’ primary argument is that the controversial law is flawed and the controversial audit is not.
Whatever the outcome of the case, one thing is clear; there are educators in and out of the Tucson Unified School District who want to use their classrooms as soap boxes to press their ideologies. Through art, literature, and lectures, while speciously claiming to teach “critical thinking” skills, they will develop fear and foster hate in their unsuspecting students.
The State’s case
In their closing arguments, the state’s attorneys first challenged claims that Mexican American Studies program was singled out for prosecution by politicians for politicians. The state pointed out that it “has not received any complaints about any program other than the District‘s MAS program,” and it is “required by statute to consider and investigate any and all complaints and requests for information relating to public schools and charter schools.”
As a matter of fact, John Stollar Chief of Programs and Policy for the Arizona Department of Education testified that “the Superintendent and his staff at the Department would investigate any complaints it received about this or any program alleged to be operating in violation of state law.”
The state argued that there was “no evidence to support claims that the investigation of its MAS program was politically motivated.” The state told the court, “Because the law had only just become effective in January 2011, Superintendent Huppenthal decided to initiate a comprehensive investigation of the MAS program independent of his predecessor‘s findings. Rather than being motivated by any political bias, Superintendent Huppenthal testified that he felt the issues were very serious that were involved in the whole endeavor and that it shouldn’t be treated as a political football.
As a result, “In connection with his investigation, Superintendent Huppenthal decided to retain an outside company to perform an audit of the MAS program during the spring of 2011 because he thought an independent auditor would prevent the investigation from becoming overly politicized. However, before it even started the audit and auditors became a political football for MAS proponents.
The audit
The state’s attorneys addressed the scope and finding of the department’s investigation including the only aspect of that entire investigation that has been challenged; the National Academic Educational Partners (NAEP) audit. Due to the political past and certain political future of the MAS issue, choices for auditors would limit ADE’s choices of auditors.
“When the Superintendent first requested proposals from outside auditors, several national organizations expressed interest in participating.” Despite Huppenthal’s best efforts to change the discussion from political to educational, “ these other companies quickly withdrew their interest in performing the audit officially citing a lack of the personnel needed to perform the work, but also informally advising Hrabluk that the investigation and audit involved a very political, highly emotionally charged issue, and they weren’t interested in delving into that. Thus, the Cambium Learning Group was the only company that submitted a formal bid to perform the audit.”
Due to the immediate and concentrated media attack on the Cambium personnel, the company handed the audit over to NAEP. The state told the court that “Despite the Superintendent‘s desire to retain independence, the NAEP auditors were almost instantly drawn into the political mire surrounding the MAS program and the investigation of it. As a result of the publicity surrounding the individual auditors initially selected to lead the audit, NAEP CEO Jeffrey Hernandez expressed his desire to withdraw from the project in conversations he had with Hrabluk.”
Despite this, “the Superintendent and the Department did not allow Cambium or its subcontractor to withdraw from its contractual obligation to perform an audit of the MAS program.” According to Hrabluk, the scope of the audit required the auditors to be very well-versed in the Legislation 15-112, in their review curriculum and materials and classroom observations.
Cambium was to review the written curriculum, conduct interviews with focus groups that were to include randomly selected participants, review materials used in the classroom, and, finally, review student work.
Much of that did not happen.
According to testimony, “The audit team observed only one MAS lesson being delivered to middle school students. In one of the middle school classes the auditors attempted to visit, the teacher was on her planning time‖ and therefore not engaged in teaching MAS. Another middle school class was engaged in a math class because their traveling MAS teacher was unavailable.” Auditors finally “observed a third middle school class that actually was engaged in a lesson about the Mexican American Revolution. No other middle school MAS classes were observed.”
Also, “The auditors observed only two authentic Latino literature courses. The auditors tried to visit five of the Latino Literature classes offered to the District‘s high school students. Of those five classrooms, one had a substitute teacher showing a video. Another had a guest speaker speaking to the students about potential grant and scholarship opportunities for college, and one had a writing lesson that the auditors stipulated in their review was questionable and that they believed was staged for their review.”
In whole, “The auditors observed six of the sixteen MAS history classes offered at the District. The auditors noted that the history lessons for every class were covering completing different subjects, which is strange since all six classes were for the same grade level and offering the same core credit for American History.”
The court was advised that “In the four American Government/Social Justice Education Project classes that the auditors attempted to observe, the students were engaged in student projects and no explicit instruction was taking place.”
“During classroom observations, no established curriculum was observed by the ADE auditors,” according to the state’s closing. The auditor’s report on classroom observation was found to be “extremely limited” by the ADE.”
The audit’s focus groups were not randomly selected as required by the ADE. “The focus group interviews conducted by auditors were also fundamentally flawed and biased. Although the focus group participants were supposed to be randomly selected, it appears that some of the most outspoken advocates of the program (MAS teachers who have filed suit to invalidate HB 2281) were responsible for selecting the students who were interviewed,” according to the state.
Red flags prompt parallel investigation
Due to the fact that the draft “audit report highlighted serious flaws in the curriculum and organizational structure of the MAS program and yet reached conclusions that were not parallel to the specific findings the auditor‘s reported about,” the Superintendent and staff grew concerned. The department began a parallel investigation of the district’s program.
“Because of the red flags raised in the draft report and the obviously limited information auditors were given access to, the Superintendent decided to conduct an independent review of the MAS curricular materials before he could make a final determination as to whether the District was operating its MAS program in compliance with § 15-112(A).” The state advised the court that “with over fifty years of combined experience in education and curriculum development, Stollar and Hrabluk are experts in evaluating K-12 curriculum, including that used in the MAS program.”
The state challenged the importance of the district’s emphasis on classroom visitations. They argue that while “neither Stollar nor Hrabluk personally observed MAS classes during the course of their investigation, the district ignores the fact that “Superintendent Huppenthal did observe an MAS class during the Fall of 2010 and found the course to be disturbing in material respects, consistent with the written materials he and his staff later reviewed.”
Stollar and Hrabluk both testified that a classroom observation of MAS curriculum would not have changed their opinions regarding statutory compliance. The state’s attorneys offer Hrabluk’s explanation, ‘that the point and purpose of a classroom observation is to determine the extent that the written curriculum is being fully implemented and implemented effectively in a classroom.’ As well as both Pedicone and Menconi’s testimony in which they agreed that the purpose of a classroom observation is to confirm that written curriculum is being followed.
The state offered Hrabluk’s opinion that,
a detailed written lesson plan provides clear evidence of the context in which a particular lesson is being delivered because the written lessons provide a detailed outline of the materials that the teacher is going to require to teach the lessons, an objective of what will be taught, stated criteria for success which will lay out what the teacher needs to be monitoring as he or she goes through the lesson, and an outline of how the teacher should assess student work.
Investigation obstructed by district
According to court documents, Stollar and Hrabluk reviewed written materials, texts, and other materials produced by the Cambium auditors, as well as interviewed some community members familiar with the MAS program. In their closing arguments, the state pointed out that though
Stollar and Hrabluk did not interview any community members strongly supportive of the program,
this was largely due to the fact that MAS supporters boycotted the Superintendent‘s investigation. On the advice of his counsel, Richard Martinez, Arce (MAS program director) refused to speak with the auditors and did not meet with the auditors.”
Mr. Arce also refused to facilitate a focus group interview that the auditors wanted to conduct with the Mexican American Studies community advisory board, an advocacy group supportive of the District‘s MAS program.
The state laid out the obstruction by the district in detail, “the head of the Mexican American Studies Department (Department), which administers the Program, refused both to be interviewed by the auditors and to provide complete curriculum materials to allow for a full evaluation of the utilized curriculum and classroom teachings. The auditors were unable to review any comprehensive curriculum. Materials in the classroom were generally non-existent and no consistency in materials or coursework existed in separate class sections identified as being the same subject. . . . Our finding is based on the limited curriculum and materials reviewed at TUSD and additional materials gathered independently of the conducted classroom observations.”
The state cited the district’s own Deputy Superintendent’s testimony,
….. in her experience, a curriculum audit should include a comprehensive review of written curriculum, teachers‘ lesson plans, textbooks (to check for congruency with written curriculum), student assessments, and sample student work in conjunction with classroom observations. Menconi further acknowledged that NAEP auditors did request copies of the MAS curriculum and textbooks to review when they arrived to begin conducting the audit.
Menconi testified that she asked Sean Martin Arce (Arce) to compile all written curriculum and textbooks responsive to the auditors‘ requests for information. Menconi confirmed that she transmitted the information compiled by Arce to the auditors via a flash drive or CD without reviewing the material so that Mr. Arce was independently responsible for selecting the materials or the curriculum materials that were provided to the Cambium auditors in response to those requests.
The state held that “it is not disputed that the District failed to provide the auditors with all MAS written curriculum and textbooks used in MAS classes. As set forth in the final report issued by Cambium, Mr. Arce produced only nine MAS curriculum units to them during the course of the audit.”
Indeed, many of the curriculum units produced in response to discovery requests during the parties‘ preparation for the hearing were not produced to Cambium or to the Department.
Nevertheless, the auditors emphasized that three out of the nine total MAS curriculum units disclosed to them (mostly elementary units) contain an overabundance of controversial commentary inclusive of political tones of personal activism and bias.
The state noted that the “auditors also expressed concern that [t]here is no direct connection of required reading texts or suggested reading texts in every curriculum unit. Therefore, the audit team cannot determine whether all books are currently in use.” The state argues that “the one person with the ability to explain or clarify the discrepancies between the written curriculum and textbook lists (the MAS program director) refused to speak with the auditors,” according to his testimony on day 2 of the hearing.
District staff lies to auditors
Despite the fact that the district’s Deputy Superintendent testified that a review of teacher’s lesson plans and sample student work, was an important aspects of any valid curriculum audit, “Auditors were told that there was no District policy specifying a consistent practice for daily or cumulative lesson plan retention, and that high school teachers in the MAS program commonly write the plan on the board and erase it at the end of class”
At the hearing, however, Arce testified to the contrary. According to Arce, there is a district-wide policy specifically requiring all lesson plans to be in writing and pre-approved. Thus, the auditors were given false information regarding lesson plan retention, which would and should have been a key component in the auditing process.
Although as part of a curriculum audit, it is common practice to review student work samples, MAS teachers told auditors that student works are not retained, rather sent home instead. Again, contrary to what the auditors were told, at least some MAS student work samples are retained and were eventually produced by the District‘s counsel during the course of discovery in this matter.
The state concluded “Because the auditors were not provided with lesson plans or sample student work, the scope and sequence of [MAS] lessons could not be determined nor could it be evidenced through student work samples. As Hrabluk explained, the scope and sequence of lessons is a critical part of the established curriculum. A scope would refer to the breadth and depth of the content that would be covered with students, and a sequence would refer to when that material would be presented.”
Auditor’s observed little reality
The state noted that the district “emphasizes that NAEP conducted classroom observations during the course of its MAS program audit and found no observable evidence of a statutory violation. However, the state argued that the audit’s conclusions based on classroom observation were faulty at their core.
There were, however, many problems identified with respect to how these observations were conducted. First, the classroom observations were supposed to be unannounced. The purpose of conducting unannounced classroom visits was to ensure that the auditors obtained a reliable and authentic observation of MAS classes as they regularly occur. As Stollar confirmed, if teachers know in advance that they are going to be observed, they have a tendency to change their lesson, or it might not be an authentic indication of what is being taught on a day-to-day basis.
Nevertheless, Menconi confirmed that she communicated to principals the time frame for when the auditors would be conducting classroom visits and could not dispute that principals may have informed teachers of when the auditors were coming.
Arce confirmed that he did tell the MAS teachers that the auditors were coming to observe their classes.
The state contends that “Superintendent Huppenthal made the decision to hire an outside entity to conduct an audit because he felt it was proper to have “something done independently” so as to separate the issues from the political context. Superintendent Huppenthal testified that he found the final product of the audit “to be of limited usefulness” because after looking at “a broader range of evidence,” the audit “did not live up to the rigor that an audit should live up to.”
Superintendent’s determination
Superintendent Huppenthal’s deposition was entered into evidence. In it, the Superintendent makes it clear that he wanted the process to be as nonpolitical and as non-disruptive to the district and Superintendent Pedicone, as possible.
The Superintendent explained that he wanted the audit done in a timeframe that would permit him to come to conclusions at the end of the semester because this would “strategically work out best” for Dr. Pedicone and would “cause the least amount of chaos for him.”
The Superintendent asked the auditors to complete their review within 60 days so that a decision could be communicated to the District by the end of the Spring 2011 semester. Superintendent Huppenthal believed this would cause the least amount of chaos for Superintendent Pedicone (obviously, any finding made at the conclusion of the Spring 2011 semester would prevent interference with on-going MAS courses, student graduations, and would also give the District the summer to achieve compliance, if necessary).
As Mr. Stollar confirmed, whenever the legality of an educational program offered in public schools is called into question, there‘s always an urgency to try to resolve it as quickly as possible.
In communicating his decision, the Superintendent provided the District with a detailed notice of violation including a description of the rationale underlying his decision.
The state concluded that at the end of the Spring 2011 semester, “after a lengthy audit and exhaustive review of thousands of pages of written materials, the Superintendent reached a final determination regarding whether the MAS program was in compliance with state law on June 15, 2011. The Superintendent determined that the District‘s MAS program offers classes that violate subsections (A)(2), (3), and (4) of A.R.S. § 15-112. In so doing, the Superintendent did not ignore the auditor‘s report. Rather, he considered it along with a number of other sources of information in arriving at his final conclusion.”
Constitutionality
The state notes that “the District claims to be confused regarding how it can bring the MAS program into compliance with state law.” The state challenges the district’s confusion and the law vagueness.
It avers, in fact that, “A clear road map for achieving compliance has been provided to the District and is prescribed by state law. Even the District‘s then-board president thought the solution offered by the Superintendent and his staff is the best policy response to the deficiencies he too identified in the program.”
The state witness testified as to a remedy, “Stollar, Stegeman, Hrabluk, and expert Stotsky all testified, the MAS program should be temporarily suspended and reconstituted using lawful methods of curriculum development and public screening to ensure a consensus regarding the appropriate content for the program and its specific courses.”
The state concludes that “the District‘s alleged confusion regarding how to achieve compliance with state law does not legitimately demonstrate that A.R.S. §15-112 is unconstitutionally vague.”
The Districts’ case
The district primarily argued “that A.R.S. § 15-112 is vague as applied to the District and is being enforced in a manner that is unfair. They hold that the district’s “MAS program was the target of the legislation that resulted in the enactment of A.R.S. § 15-112.”
The district complains that the Department of Education “has not investigated any other ethnic studies classes at any other school district in Arizona.”
The district defends the Cambium audit, writing that “auditors reviewed the same materials and came up with opposite conclusions.”
The district challenges Superintendent Huppenthal’s credentials. The district cites the fact that “Superintendent Huppenthal does not have a background in education.” They expand on that theme by advising the court that “Superintendent of Public Instruction John Huppenthal has a background in mechanical engineering and has served as an elected official in various positions since 1984.”
The district challenges the Constitutionality of the classes, citing vagueness as the issue. “The Department did not provide a sufficient explanation of what particular aspects of the MAS classes violate A.R.S. § 15-112 and did not identify any specific course that was in violation.”
The brazenness of the TUSD case is epitomized by its reliance on Milem’s testimony. It takes serious nerve to challenge the testimony of experts who have reviewed reams of MAS course materials because they never visited an MAS classroom, and all the while relying on the testimony of a so-called expert who not only is a personal friend of the program’s director, has never examined any of the course materials, AND has never visited any MAS classes.
Consensus
The district’s witnesses “did not rebut the comprehensive evidence from curriculum materials, sample assessments, student work, and first-hand classroom observations.”
The District did not refute that the written materials produced and verified by Mr. Arce were approved (by Arce) and used by MAS teachers in the Spring of 2011. These materials contain repeated references to the adoption (or reclamation) of a Chicano/a or indigenous identity that was stolen from Latinos by their white, European oppressors. Historically the Latino has been excluded from the education system or . . . they are raped of their culture and language.
The District did not rebut or refute that the MAS curriculum is premised upon the white/oppressor versus Latino/oppressed philosophy. Instead, the District called Jeffrey Milem (a friend and colleague of MAS director Sean Arce) to opine as an expert that such philosophies are not generally designed to promote racial resentment. Nevertheless, Milem has never been in an MAS classroom, has not reviewed any MAS curriculum, and is not familiar with the barrio pedagogy designed uniquely for MAS students.
The finding
Judge Kowal will render his opinion some time before federal court Judge Tahima decides in the state’s motion to dismiss the SaveEthnicStudies lawsuit. Many legal experts believe that the federal case brought by the program’s teachers will be dismissed, and Huppenthal will proceed to dock the district 10 percent of their funding.
In an article on this topic, the Capitol Times, noted the district’s role in the development of HB2281. At the time of the district’s involvement in the development of HB2281, it was clear that most of the educators in the district did not want to promote hate and resentment.
The district may proceed to do without the state’s money and opt to continue with the classes. If in fact that is the case, the public discussion of this issue will continue to prove to be far more important than any court finding.