Federal Judge Wallace Tashima denied the request for an injunction filed by the Tucson Unified School District Mexican American Studies teachers today.
Judge Tashima found that the teachers did not face harm in his dismissal of their request for an injunction against the Arizona Superintendent of Public Instruction John Huppenthal. Judge Tashima also found that the teachers lacked standing and removed them as plaintiffs in the case.
The Court said that it “agrees with Defendant Superintendent’s latter argument. Even assuming that Plaintiff teachers could establish standing based solely on allegations of “subjective chill,” Plaintiff teachers have failed to demonstrate that they have a protected First Amendment right to speak within the classroom. Plaintiff teachers admit that they cannot control the curriculum at TUSD schools, but claim to have a First Amendment free speech right to speak within the curriculum previously approved by the TUSD Governing Board.”
“This argument, however, is foreclosed by the recent opinion in Johnson v. Poway Unified School District. There, the Ninth Circuit firmly adopted a single test to determine the First Amendment protection accorded to teacher speech, embracing the test for public employee speech laid out in Pickering v. Board of Education, as modified by Garcetti v. Ceballos.”
“It is undeniable that speech made while teaching, which is at issue in this case, is part of a teacher’s “official duties.” Thus, the free speech rights for which Plaintiff teachers here argue are squarely within their role as public employees. Plaintiff teachers have no protected right to speak as teachers, either within or outside of the curriculum in the classroom. The Supreme Court cases which govern in this circumstance, Pickering, as modified by Garcetti, protect only views expressed as a private citizen, not as a public school teacher.”
Judge Tashima agreed with Superintendent Huppenthal that “Plaintiff teachers fail to state a claim for relief on the basis of their free speech rights, even if they merely wish to express varying viewpoints about an approved topic in the curriculum.”
Judge Tashima found, “Plaintiff teachers have not demonstrated the concrete injury they suffer as a result of being unable to influence curricula at a local level, especially considering the established principle that “school teachers have no First Amendment right to influence curriculum as they so choose.”
Judge Tashima wrote, the “Constitution does not compel teachers, parents, and elected school officials to surrender control of the American public school system to public school students). The teachers and students could just as easily form an extracurricular club or social group outside of school to discuss such issues.” However, he did not throw out the case of one of the teacher’s children.
“The students here have made a plausible showing of a First Amendment violation based on allegations in the Complaint that viewpoint-discriminatory criteria are being used to remove certain texts and materials from the MAS curriculum, which represent “willing speakers” to which the students would have otherwise been exposed. See Stuart, 702 F.2d at 195. As a result, the Court denies Defendant’s motion to dismiss Plaintiff Students’ First Amendment free speech claims for failure to state a claim.”
Before the Court were two issues; the request by the state’s Superintendent of Public Instruction to dismiss a case filed by 11 Mexican American Studies educators and two of their children, and a request for an injunction against the state by the teachers and their children.
Assistant Attorney General, Kevin Ray argued against the injunction saying that the teachers “have not suffered any concrete injury sufficient to establish their standing to proceed with this lawsuit. Their claim of a “subjective chill” is insufficient because the statute they seek to challenge does not even apply to them.” The state argued that the teachers’ injunction is based on speculation and that “a potential loss of their employment is contingent upon the decisions of their employer, TUSD, who is not a party to this lawsuit.”
The state also argued that the law is racially neutral as it prohibits any “school district or charter school” from implementing a “program of instruction” that (1) “promotes the overthrow of the United States government,” (2) “promotes resentment toward a race or class of people,” (3) is “designed primarily for pupils of a particular ethnic group,” or (4) “advocate[s] ethnic solidarity instead of the treatment of pupils as individuals.”
In its arguments, the state pointed out that “By its terms, the law does not apply to individual teachers or students; it does not prohibit any individual conduct and it does not restrict any individual teacher or student’s speech.”
Further, they argue that the law “does not apply to individual teachers or students and therefore contains no civil or criminal penalties punishable against them. While the law allows the Superintendent of Public Instruction to order a reduction in the district’s state aid, it does not empower the Superintendent to discipline or terminate any teacher or student.”
The teachers and their children’s attorney Richard Martinez argued that enforcement of HB 2281 against TUSD’s Mexican-American studies program will “result in the immediate termination of the Mexican-American Studies Department and the employment of the adult plaintiffs.” However, the teachers are all still currently employed by TUSD.
The Court found, “As a result, the Court concludes that Plaintiff teachers, including Director Arce, do not have standing based on the hypothetical threat to their employment posed by enforcement of § 15-112 against TUSD.”
Judge Tashima ordered:
(1) Defendant’s Motion to Dismiss (Doc. 88) is granted in part and denied in part, as follows:
(a) All claims of Plaintiff teachers and Plaintiff Sean Arce are dismissed for failure to establish standing and Plaintiffs’ free association claim is dismissed for failure to state a claim upon which relief may be granted.
(b) The motion is denied with respect to the remaining claims asserted by Plaintiff students
Updates…..
The pro-Mexican American Studies “student” group UNIDOS made their demands today in front of a crowd of about 10 reporters, and 15 supporters at the Tucson Unified School District’s central offices. Earlier in the day, a request for a student walk out was rejected by the district’s students.
One district insider stated that due to the fact that the enrollment in the classes had dropped to six to thirteen students per class, “No one was going to notice if five kids walked out, so why bother?”
UNIDOS had joined forces with members of Occupy Tucson and organized a walk from downtown to the district offices. Approximately 15 students accompanied by at least one teacher were preceded by approximately 30 occupiers.