Last week’s headlines about the conservative teacher in Alabama, who offered to his students a summer reading list filled with only conservative writers, surprised education activists across the county on both sides of the political aisle. The timing could not have been better however for those activists on both sides of the aisle who agree that indoctrination cannot replace education.
In the case of Alabama teacher, Gene Ponder, adults rightly sprang into action and prevented him from using his position of power to influence young students rather than educate them.
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In 2012, Federal Judge Wallace Tashima, a President Jimmy Carter appointee, found 3 of the 4 provisions of the law to be constitutional. In his ruling in Maya Arce, et. al. v. John Huppenthal, Judge Tashima found that the teachers 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.” |
Indoctrination Gets Challenged
In the case of Tucson Unified School District’s Mexican American Studies teachers, it took a law; HB2281 (A.R.S. 15-112), to stop teachers from abusing their power and pushing a political agenda rather than allowing students to form their own.
That law is the subject of a hearing this week, in the matter of Acosta et al v. Huppenthal, beginning at 9:00 a.m. on Monday. The case centers around Tucson Unified School District’s Mexican American Studies classes that had been offered prior to the ruling by Administrative Law Judge Lewis Kowal in 2011.
Since then, the matter has wound its way through federal courts. In 2012, Judge Tashima had ruled in favor of 3 of the 4 provisions embodied in HB221.
As reported in 2013:
“Judge Tashima used a narrow definition of the statute in keeping with Administrative Law Judge Kowal’s decision in the appeal of Superintendent Huppenthal’s finding that the classes violated state law. Tashima wrote, “Specifically, the ALJ found that the statute “permitted the historical (objective) instruction of oppression that may, as a natural but unintended consequence, result in racial resentment or ethnic solidarity. However, teaching oppression objectively is quite different than actively presenting material in a biased, political, and emotionally charged manner . . . .” (PSOFO, Doc. 162, Ex. I at 35.) This Court owes at least some deference to the ALJ’s sensible construction of the challenged statute.”
Tashima, an appointee of President Jimmy Carter who was elevated by President Bill Clinton to the United States Court of Appeals for the Ninth Circuit, wrote, “The Court’s rulings stem in large part from the considerable deference that federal courts owe to the State’s authority to regulate public school education.”
Throughout the ruling Tashima referred to Kowal’s ruling. He noted that “the ALJ issued a 36-page Decision that analyzed textbooks, curricular materials, and student work. The Decision also considered the testimony of state education officials, TUSD officials, teachers, parents, and education experts. After a fairly specific analysis of the evidence, the ALJ concluded that the evidence “establish[ed] that the MAS program has classes or courses designed for Latinos as a group, that promotes racial resentment against ‘Whites,’ and advocates ethnic solidarity of Latinos.”
At the same time he soundly criticized Attorney General Tom Horne, who had turned educators’ concerns about the indoctrination of TUSD’s MAS students into a political football. He found Horne’s actions to “spark suspicion” that they were for “invidious purposes.” He noted that Horne raised “red flags” as early as 2007, when he wrote an “Open Letter to the Citizens of Tucson” explaining his disagreement with the MAS teachings.”
“Horne issued his Finding of Violation on his last day in office, December 30, 2010. His Finding went into effect January 1, 2011, the same day that § 15-112 went into effect. The timing of the Finding underscores Horne’s determination to do away with the MAS program, and it also means that Horne necessarily applied the statute retroactively, without any effort to show that the problematic materials were in use at the time of the Finding.
Indeed, Horne’s successor, Superintendent Huppenthal, seemed to recognize this defect, and thus issued his own Finding that purported to address contemporaneous violations.”
However Tashima wrote, “Defendants do not dispute that § 15-112 was passed in response to complaints about the MAS program. Indeed, the testimony before the Senate Committee confirms that this was the case. By itself, however, this facet of the legislative history does not reveal a discriminatory intent.”
Tashima explained that while Horne seemed determined to find the classes in violation and offered a sloppy and political finding, Huppenthal used caution.
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Tashima ruled against § 15-112(A)(3) as “facially overbroad” in light ambiguities the Court found. “The provision does not promote any legitimate interest that is not already covered by §15-112 (A)(2) and (A)(4).” Tashima found that Section 3 did not “further any legitimate pedagogical interest.”
Judge Tashima found that the “interest is already covered by section (A)(2). There is a similarly problematic overlap between (A)(3) and (A)(4), which forbids courses that advocate ethnic solidarity instead of treatment of pupils as individuals. The Court is hard-pressed to conceive of a course that “advocates ethnic solidarity,” but that is not also designed for a particular ethnic group. It thus appears that (A)(3) forbids courses designed for a particular ethnic group, even if those courses do not promote resentment of another group, and even if they do not advocate ethnic solidarity, instead of individual treatment. This additional prohibition, untethered as it is to the primary purpose of the statute, raises serious constitutional concerns.”
Tashima recognized that just like in the case of teacher Gene Ponder, the state has an obligation to protect kids from ideologues and other predators.
The Ninth Circuit agreed with Tashima for the most part in 2015.
As reported in 2015:
A three judge panel upheld Tashima’s ruling except his ruling against the claim made by defendants that the law was enacted with discriminatory intent.
The justices found that there was a material issue of fact as to whether or not there was discriminatory intent on the part of lawmakers, and deemed the motion for summary judgment granted by the lower court was inappropriate. The justice remanded the case to the trial court in order to determine whether or not there was discrimination.
Just the facts
Both Huppenthal and Horne are expected to appear in Judge Tashima’s courtroom during the 12 days set aside for the trial.
The classes, and the methods employed by many of the TUSD Mexican American Studies teachers was first brought to Horne’s attention by Tucson High school teacher John Ward. Ward, a Mexican American, had exposed the indoctrination he witnessed first-hand while at TUSD’s largest school.
HB2281 was sponsored by then-Representative Senator Steve Montenegro, an immigrant from El Salvador.
While the proponents of the classes have been unsuccessful in the courtroom, they have been wildly successful in the court of public opinion. That success however is based mostly on false claims made to stir emotions and fake math designed to make the classes appear as if they led to greater student performance.
Among the devices used by Mexican American Studies proponents elicit outrage and support is the false claim that the books used in the classes were banned. In fact, the books occupy every high school library in the District. Although they are rarely checked out, they are available to TUSD students at will.
Proponents rely on the work of University of Arizona Professor Nolan Cabrera, who claims that his research shows the students, who took the Mexican American Studies classes performed better than their counterparts, who did not take the classes.
| Year | MAS | Non-MAS |
| 1 | 10.2 | 15.6 |
| 2 | 10.2 | 21.3 |
| 3 | 11.4 | 18.8 |
| 4 | 9.5 | 20.8 |
Cabrerra’s statistical work has been debunked by other scholars. His work has been called into question due to the fact that the performance comparison is skewed because the “percentage of identified special education students in the non-MAS control group is significantly higher…in some cases more than double…the percentage of Special Education students in the MAS group.”
In Conclusion
Facts rarely stand in the way of the rabid left or right. Teachers like Ponder, and those found in TUSD’s Mexican American Studies classrooms will continue to push their agenda on kids, who have little choice but to nod in agreement in order to save their grades or otherwise win favor.
The kids in Alabama, who were the intended victims of a political predator, were protected by fast acting adults. The kids in Arizona should have had that same right.
Related articles:
9th Circuit Rules Against TUSD Mexican American Studies
Federal Judge Rules Against TUSD’s Mexican American Studies
Kowal Decision: TUSD’s Mexican American Studies classes found to violate the law