In 2010, the Arizona legislature enacted a so-called “ethnic studies” ban that prevented students in a predominantly Latino school district from studying in a program that incorporated “historical and contemporary Mexican American contributions into coursework and classroom studies.” On Tuesday, however, a federal appeals court cast the future of this program into serious doubt. Though the United States Court of Appeals for the Ninth Circuit’s opinion in Arce v. Douglas does not strike down this law in its entirety, it suggests that such a decision is likely to come in the future.
On its face, the law at issue in this case prohibits “any courses or classes that: (1) ‘Promote the overthrow of the United 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.’” In practice, however, the law has only actually led to one set of coursework being discontinued — the Mexican American Studies program in the Tucson Unified School District, where “sixty percent of the children enrolled in the Tucson public schools were of Mexican or other Hispanic descent.”
Indeed, as Judge Jed Rakoff describes the history of this law in his opinion for the court, the law appears to have been enacted — at least in part — as an act of vengeance by the state’s top education officials against students who once hurt their feelings. “Efforts to disband the MAS program began in 2007,” Rakoff explains, “after a group of students walked out of a speech by” the state’s Deputy Superintendent of Public Education which was intended to refute a prior allegation made to the student body that ‘Republicans hate Latinos.’”
In response to this incident, former Superintendent of Public Instruction Tom Horne penned an open letter claiming that “the students did not learn this rudeness at home, but from their Raza teachers.” He also called for the Mexican American Studies program to be eliminated.
After Horne successfully encouraged the legislature to enact the law at issue in Arce, he used his last day in office to issue a finding — deemed premature by the court because it came a day before the law actually took effect — that the Mexican American Studies program violated the law and must be eliminated. Horne’s successor, John Huppenthal, initially commissioned an independent auditor to review the program. Yet, after that auditor concluded that there was “no observable evidence was present to indicate that any classroom . . . is in direct violation of the law,” Huppenthal rejected the auditor’s findings and eventually ordered the Tucson school district to eliminate the program or face sharp funding cuts. Faced with this threat, the district complied.
Though the Ninth Circuit’s opinion reviews a number of legal issues, some of which, it determines, cut in favor of the state, its most important holding is that a federal district court must hold a trial to determine whether this law was “motivated, at least in part, by an intent to discriminate against [Mexican American Studies] students on the basis of their race or national origin.” In addition to the facts explained above, Judge Rakoff cites additional evidence supporting this conclusion, such as the fact that “it is undisputed that the statute’s enactment and enforcement has had a disparate impact on Mexican American students” because 90 percent of the students in the Mexican American Studies program were “students of Mexican or other Hispanic descent,” as well as statements from lawmakers and officials which suggest the law was motivated by racial concerns.
When introducing the law to the state House Education Committee, for example, a lawmaker claimed that Mexican American Studies fosters “racial warfare.” Huppenthal ran for superintendent, which is an elected position in Arizona, by promising to “’stop La Raza’ if elected.” Horne, who finished his tenure as superintendent with a successful bid to become the state’s attorney general, posted a video on his campaign website saying that “I fought hard to get the legislature to put a — to pass a law so that I can put a stop to [the Raza Studies program]. And as the attorney general, I will give the legal aid to the Department of Education to be sure that we do put a stop to it.”
The evidence in this case, the court concluded, “raise at least a plausible inference that racial animus underlay passage of the legislation.”