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.
