Federal judge Wallace Tashima upheld an Arizona state law, commonly referred to as HB2281, which prohibited curricula that promoted the overthrow of the United States Government, and promoted resentment toward a race or class of people. Judge Tashima found three of four of the law’s sections Constitutional.
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.”
Judge Tashima noted that a school “has a legitimate interest in limiting curricula that tend to encourage the overthrow of the United States government; citing Dennis v. United States, “No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence.”
The Mexican American Studies teachers through their attorney Richard Martinez, contended that “§15-112(A)(1) would prohibit, for example, a discussion of those portions of the Declaration of Independence that recognize the right to “throw off” tyrannical governments. Similarly, they contend that § 15-112(A)(2) would preclude the teaching of any historical account of racial oppression or ethnic violence – slavery in the United States, or the 9/11attacks, for example – because such coursework may cause some students to resent the perpetrator’s race.
Judge Tashima used a narrow definition of the statute is in keeping with Administrative Law Judge Kowal’s decision in the appeal of Superintendent Huppenthal’s finding that the classes violated state law. Tahima 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.”
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.”
Tashima also noted:
“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. Tashima referred to Happenthal’s commission of the audit by “Cambium Learning, Inc., to perform a curriculum audit of the MAS program.”
Tashima wrote:
“After a two-month investigation, Cambium concluded that “no observable evidence was present to suggest that any classroom within [TUSD] is in direct violation of the law A.R.S. § 15-112(A).” Nevertheless, both the Huppenthal Finding and the subsequent ALJ ruling disagreed with Cambium’s conclusion, noting several limitations of the audit that Cambium itself had identified.
Thus, for example, the Report stated that “[i]t is imperative to note the curriculum audit period included a limited number of classroom observations in comparison to the number of sections offered.” Specifically, Cambium was only able to observe 39.5% of all high school MAS courses offered. Id. The Report also emphasized that auditors were only able to observe an average of 29.6 minutes per class period, and further recognized “the lack of comprehensive information provided by” the MAS department. “[A]s part of a curriculum audit, it is common practice to review student work samples; yet, [MAS] student works are not retained, rather sent home instead.”
The Court need not determine whether the Cambium Report was right or wrong, nor whether the deficiencies outlined above were fatal to the Report’s conclusions. At the very least, however, the deficiencies provided a reasonable basis for Huppenthal’s decision to disregard the Cambium Report’s conclusion. Plaintiffs have not presented any evidence explaining why these deficiencies were an inadequate basis for Huppenthal’s disagreement with the Cambium Report’s conclusions. Thus, Huppenthal’s disagreement with the Report cannot support Plaintiffs’ claim that the statute was selectively enforced against the MAS program. Moreover, the Huppenthal Finding does not include the same kinds of problematic assumptions and implicit biases that appear in Horne’s informal letter.
Representative Steve Montenegro was the primary sponsor of HB2281. Montenegro, an immigrant from El Salvador, has been a tireless advocate for quality public education and is currently running for Secretary of State.
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.
The provision certainly is not an outright ban on ethnic studies courses because such courses are not solely for the benefit of members of the ethnicity being studied. But the provision’s broad and ambiguous wording could deter school districts from teaching ethnic studies.”
The judge found that First Amendment rights were not at issue because “the statute does not proscribe the rights of students to speak freely in the classroom. Instead, numerous facets of § 15-112 indicate that it is directed to school curricula. Thus, the statute expressly limits what a “school district or charter school” may do, and what a “program of instruction” may include.”
The judge did express concerns that there is evidence suggesting an insensitivity to the challenges faced by minority communities in the United States. Nevertheless, these concerns do not meet the high threshold needed to establish a constitutional violation, with one exception. Instead, they are issues that must be left to the State of Arizona and its citizens to address through the democratic process.”
TUSD Governing Board member, Mark Stegeman said of the decision, “The court’s decision to overturn one of the law’s provisions while leaving the rest intact is good for TUSD because it relieves the district of the almost contradictory mandates to “develop and implement culturally relevant courses of instruction designed to reflect the history, experiences, and culture” of specific ethnic groups (from the court-ordered desegregation plan), while not offering courses that are “designed primarily for pupils of a particular ethnic group” (from the just-overturned provision of state law).”
Rich Kronberg, an education expert and long time classroom teacher said, “Judge Tashima’s ruling is impressive in its scholarship. He acknowledged the state’s interest in regulating the curriculum of school districts, and gave that the appropriate degree of deference to this legitimate state interest in his decision. This stands in stark contrast to the recent decision by Judge Bury in the TUSD desegregation case. Judge Bury was dismissive of the state’s interest in seeing that efforts to desegregate TUSD schools do not put it…once again…in violation of the same statute as the old MAS program violated. In fact, Judge Bury ordered TUSD to create “culturally relevant classes,” whatever that means. It remains to be seen whether Judge Bury’s decision will result in more integration in TUSD schools or not.”
According to various sources, the MAS camp headed by Sal Baldenegro wants to appeal Tashima’s decision and continue to utilize the services of Richard Martinez. The MAS camp headed by Adelita Grijalva wants to appeal the decision using the services of an attorney in Seattle. An appeal of the decision is fairly certain either way.
However, as TUSD’s MAS proponents tried to make the classes a call to action, the “moviemento” has lost steam over the years. Just last week the “Godfather” of Mexican American or Chicano Studies, Rudy Acuna cited an article in Fronteras: The Changing America Desk, entitled, “Declining Interest In ‘Chicano Studies’ Reflects A Latino Identify Shift.” Younger generations of Latinos are rejecting the nationalism inherent in the Chicano movement and the term “Chicano.”
According to the article the drop in enrollment is attributed to the fact that “the children of immigrants from Mexico, who are also landing on college campuses in record numbers. But these students see themselves differently than earlier generations of Mexican-Americans.
“Students in many cases don’t identify as Chicanos, as did the generation that created this department,” said Ortiz, a San Diego State University Chicano Studies professor interviewed by Fronteras. “Many more identify as Mexican, Mexican-American, or simply American.”
Related article:
Kowal Decision: TUSD’s Mexican American Studies classes found to violate the law