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Saturday, October 7, 2017

An Analysis of the Court Decision that Found the Banning of the Mexican American Curriculum Unconstitutional


Editor: We invited authors, Leslie Locke and Ann Blankenship, to provide our readers with an analysis of the recent court decision finding the banning of the Mexican American curriculum in Tucson, Arizona to be unconstitutional.   Their earlier publication in Volume 10 of our journal was titled, “Keeping the Flames at Bay:The Interplay between Federal Oversight and State Politics in Tucson’s MexicanAmerican Studies Program.”  Their article was part of a series of articles that this journal has published on this issue. Others included:The Hypocrisy of Racism: Arizona's Movement towards State-Sanctioned Apartheid” by Augustine F. Romero, “Dangerous Minds In Tucson: The Banning of Mexican American Studies and Critical Thinking In Arizona” by Curtis Acosta, and “Precious Knowledge: An Interview with Film Director, Ari Palos, on April 15, 2013” by Celina Meza.  We are pleased to provide our readers with the latest update on this vital issue, and thank Leslie and Ann for their in-depth analysis of this decade-long litigation .



Good News about Tucson Unified School District’s Mexican American Studies Program from the United States District Court District of Arizona!

 

By Leslie A. Locke and Ann E. Blankenship

 

 

  
It’s been a long road. But, the court finally, after years of political struggle and legal debate, supported what MAS students, parents, and teachers have always known--that the attempts at squashing the program was backed by racism and white fragility (DiAngelo, 2011) for political gain.  The court said as much in their August 2017 decision, where they noted the deconstruction of MAS was “motivated by a desire to advance a political agenda by capitalizing on race-based fears” (p. 42), and had little to zero basis in fact.  

 

The Mexican American studies program (MAS) in TUSD had been instituted as a response to a federal desegregation plan in effect in TUSD since 1978.  The MAS program, like its counterparts such as African American Studies and Asian American Studies, was an educational program that while open to any student, was centered on the Mexican American experience and history in order to forge a connection between students and the curriculum.  The MAS program was successful as evidenced by student achievement and outcomes.

 

However, a series of unfortunate events, based on illogical, as well as thin and one-sided evidence, started their course in 2006.  We won’t go into great detail here in retelling these events as much as been written about them (e.g., Acosta, 2013a/2013b; Cabrera et al., 2014; Cammarota, 2009/2012/2014; Palos et al., 2011; Romero, 2010).  In short, conservative politicians in Arizona (ironically the State Superintendents of Instruction--those elected to best serve all students in the state) dug their heels and set in with a laser focus on eliminating the MAS program by making fantastical connections between it and communism, ethnic chauvinism, rudeness, hate speech, and anti-Americanism, among other things.  

 

Here is a summary of some of the legal history that guides us to the most recent decision.

 

In 2010, the Arizona legislature passed HB 2281 (codified into statute as Arizona Revised Statutes (ARS) §§ 15-111 and 15-112) prohibiting a school district or charter school from including in its program of instruction any courses or classes that “(1) Promote the overthrow of the Unites States Government, (2) Promote resentment toward a race or class of people, (3) Are designed primarily for pupils of a particular ethnic group, or (4) Advocate ethnic solidarity instead of the treatment of pupils as individuals.” ARS § 15-112(a). In his last days in office as State Superintendent of Public Instruction, Tom Horne, concluded that the Tucson Unified School District (TUSD) Mexican-American Studies program (MAS) violated ARS § 15-112 and ordered TUSD to either eliminate the program or lose 10% of its state funding. Shortly thereafter, John Huppenthal replaced Horne as State Superintendent.  Huppenthal, claiming that he wanted all the facts before enforcing Horne’s decision, hired Cambium Learning, Inc. to conduct an investigation of MAS.  Despite Cambium’s conclusion that MAS did not violate ARS § 15-112, Huppenthal conducted an independent investigation, determining that MAS did in fact violate the law.  Facing a 10% reduction in state funding, which is essentially all of the district’s liquidity, TUSD eliminated MAS.

 

In October 2010, teachers and students of TUSD filed suit against Huppenthal as Superintendent of Public Instruction claiming that ARS § 15-112 as enacted and enforced violated their constitutional rights under the First and Fourteenth Amendments.  The case was tried and appealed to the Ninth Circuit Court of Appeals who ruled that ARS § 15-112 was not unconstitutional on its face but left the door open for subsequent challenges, noting “Even if § 15-112 is not facially discriminatory, however, the statute and/or its subsequent enforcement against the MAS program would still be unconstitutional if its enactment or the manner in which it was enforces were motivated by a discriminatory purpose” (Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015)).

 

That brings us to the federal court’s most recent review of the Arizona legislation and subsequent elimination of the TUSD MAS program.  On August 22, 2017, the United States District Court (District of Arizona) issued its decision in González v. Douglas.  The action, brought by students and their parents against Diane Douglas, the current Superintendent for Public Instruction for the State of Arizona, alleged that Arizona’s enactment and enforcement of Arizona Revised Statute §§ 15-111 and 15-112, eliminating the Tucson Unified School District Mexican-American Studies program (MAS), violated students’ First and Fourteenth Amendment Rights.  After an exhaustive recounting of the facts of the case, the District Court broke its conclusion of law down by counts, first focusing on the Fourteenth Amendment claim then the First Amendment Claim.

 

            In considering the Fourteenth Amendment claims, that the enactment and enforcement of ARS § 15-112 was motivated by discriminatory purpose, the court noted that the plaintiff’s had to prove that discrimination was one but not the only purpose of enactment and enforcement.  To determine whether an unconstitutional discriminatory purpose was a motivating factor in the enactment and enforcement of the legislation, the court looked at direct and circumstantial evidence of intent, including: (1) the impact of the official action and whether it bears more heavily on one race than another; (2) the historical background of the decision; (3) the specific sequence of events leadings to the challenged action; (4) the defendant’s departures from normal procedures or substantive conclusions; and (5) the relevant legislative or administrative history (González v. Douglas, 2017 U.S. Dist. LEXIS 141671, *39).

 

            Relying largely on public comments made by Horne, blog comments Huppenthal made under a pseudonym, and comments from other Arizona legislators, the court concluded that Arizona’s enactment and enforcement of ARS § 15-112 were motivated by discriminatory intent.  The court really focused on the intent of Horne and Huppenthal as key players in the efforts to get ARS § 15-112 enacted and enforced.  The court’s review of Huppenthal’s public and private statements regarding MAS left little doubt of his intent to discriminate.  The court included dozens of Huppenthal’s quotes in opinion.  Some of the most egregious include statements Huppenthal made on his blog under a pseudonym, which the court thought were most revealing of his true state of mind:

 

No Spanish radio stations, no Spanish billboards, no Spanish TV stations, no Spanish newspapers.  This is America, speak English.

I don’t mind them selling Mexican food as long as the menus are mostly in English.

MAS = KKK in a different color.

The rejection of American values and embracement of the values of Mexico in La Raza classrooms is the rejection of success and embracement of failure.

The Mexican-American Studies classes use the same technique that Hitler used in his rise to power.  In Hitler’s case it was the Sudetenland.  In Mexican-American Studies case, it’s Aztlán (internal citations omitted). (González, p. 26)

 

            In addition to the intent of Huppenthal et al., the court concluded that MAS’s enforcement bore more heavily on Latinx students who were already the subject of historic discrimination in Tucson (as evidenced by its desegregation court order still in effect today), that the sequence of events were out of the ordinary, and that there was an illogical departure from normal procedures.  Of particular interest here was Huppenthal’s conclusion that MAS violated ARS § 15-112 despite the Cambium report to the contrary, despite his having no first hand information about the actual curriculum taught in MAS classes.  Overall, the court found sufficient evidence of racial animus against Latinx student in the enactment and enforcement of ARS § 15-112 by Horne, Huppenthal, and others, noting:

 

The sequence of events included no attempt to conduct a good faith, objective evaluation of the MAS program’s teachings and efficacy, other than the Cambium audit, which is rejected out of hand.  Instead, in enacting the statute, the legislature, Horne, and Huppenthal relied on and presented biased accounts of the MAS program that were based on limited evidence and laced with terms fairly understood to refer negatively to perceived traits of Mexican Americans. (González, p. 28).

 

Given the total weight of the evidence presented, the court further concluded that Horne and Huppenthal did not testify credibly regarding their own motivations at enactment and enforcement of ARS § 15-112.

 

            Relying on the same body of evidence, the court ruled that the enactment and enforcement of ARS § 15-112 also constituted a violation of the students’ First Amendment right to receive information because the elimination of MAS was not reasonably related to legitimate pedagogical concerns, but instead racial animus.  The court concluded that Horne and Huppenthal’s were motivated by political gain, capitalizing on voter’s race-based fears, rather than pedagogical concern.

 

            The court will determine an appropriate remedy after parties have an opportunity to file briefs and replies, hopefully by the end of the calendar year.

 

            One of the many unsettling aspects of this strange, and sad but true story, is that it was sparked and supported by those who were elected to serve in the best interests of all students in TUSD.  Horne, Huppenthal, and their political allies have shown a complete lack of interest in the welfare of students in TUSD.  Moreover, they outrightly targeted Latinx students.  Importantly, while the original MAS program has been successfully suppressed and marginalized since 2010, thousands of students have been denied the opportunity to take advantage of a highly successful educational program tailored to the Mexican American experience and history.  They were denied all the benefits those classes were known to provide--including increased achievement and positive impacts on graduation. Horne and Huppenthal failed to make any efforts to understand the curriculum (the court confirmed that they indeed never visited a MAS class, reviewed the program curriculum, and rather cherry picked texts and presented them out of context).  These politicians’ willingness to deny students, not just those who would have been in MAS program, but all the students of TUSD, access to proven successful educational programming and opportunities to achieve, should not be disregarded or forgotten.  They openly and unabashedly misused their political power.  And they so hypocritically called MAS students “rude.”

 

Congratulations to the plaintiffs and to all who fought this fight and endured this long and often absurd road.  You have been heard, finally.  We look forward to reading about how the excellent MAS teachers will use this immediate experience to study and explore institutional racism, systemic bias, the political process, white supremacy, and white fragility.  While it was an unfortunate series of events, we image they will make great curriculum exhibits.

 
 
References

Acosta, C. (2013a). Dangerous minds in Tucson: The banning of Mexican American Studies and critical thinking in Arizona. Journal of Educational Controversy, 8(1), 1-18.  Retrieved from
http://cedar.wwu.edu/jec/vol8/iss1/9/

Acosta, C. (2013b, October 17). Interview with Curtis Acosta. [Video File]. Bellingham, WA: Western Washington University. Retrieved from  
Blankenship, A.E. & Locke, L.A. (2015).  Culturally conscious curriculum: The fight between state and federal policies in Tucson.  Journal of Cases in Educational Leadership, 18(4), 338-349.

Cabrera, N. L., Milem, J. F., Jaquette, O., & Marx, R. W. (2014). Missing the (student achievement) forest for all the (political) trees: Empiricism and the Mexican American Studies
controversy in Tucson. American Educational Research Journal, 51, 1084-1118.

Cammarota, J. (2009). The generational battle for curriculum: Figuring race and culture on the border. Transforming Anthropology, 17, 117-130.

Cammarota, J. (2012). TUSD MAS ban: Educational sovereignty in the wake of state repression. Journal of Reading Education, 37(2), 5-6.

Cammarota, J. (2014). Challenging colorblindness in Arizona: Latina/o students’ counter-narratives of race and racism. Multicultural Perspectives, 16, 79-85.

DiAngelo, R. (2011). White fragility. The International Journal of Critical Pedagogy, 3(3), 54-70.

Locke, L. & Blankenship, A. (2016).  Keeping the flames at bay: The interplay between federal oversight and state politics in Tucson’s Mexican American Studies program.  Journal of Educational Controversy, 10(1).  Retrieved from http://cedar.wwu.edu/jec/vol10/iss1/2  

Palos, A.L., McGinnis, E., Fifer, S.J., Bricca, J., & Amor, N. (Producers). (2011). Precious knowledge [DVD]. Dos Vatos Productions.

Romero, A.F. (2010). At war with the state in order to save the lives of our children: The battle to save ethnic studies in Arizona. [Special issue: Defending ethnic studies in Arizona].  The Black Scholar, 40(4), 7-15.


 

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