Ninth Circuit Court Finds Constitutional Problems with AZ Law that Censored Mexican American Studies Program

500 Years of Chicano History in pictures, one of the books removed from Tucson classrooms

500 Years of Chicano History in pictures, one of the books removed from Tucson classrooms

The students and teachers of Tucson’s now defunct Mexican American Studies program have been fighting against the Arizona state law that led to the dissolution of the program. Recently, the Ninth Circuit Court of Appeals issued an opinion that hopefully puts them one step closer to striking it down.

Arce v. Douglas (formerly Arce v. Huppenthal) challenges the constitutionality of Arizona Revised Statute § 15-112, a law passed in 2010 by the Arizona legislature that specifically targeted Tucson’s acclaimed Mexican American Studies program. Then Arizona Superintendent of Public Instruction John Huppenthal and other conservative politicians in the state argued the program fomented racial hatred, and passage of the law led to the dissolution of the MAS program despite independent assessment that found the program did no such thing and increased student success, especially among Mexican American and Latino students. With the demise of MAS, TUSD also banned from classrooms seven titles by Mexican American and Native authors.

In late 2013, CBLDF joined an amicus brief filed in the case by the Freedom to Read Foundation. The brief attacks the partisan legislation that led to end of the MAS program and the ban of several books. CBLDF joined FTRF’s amicus brief because any legislation that bans books based on the ethnicity of their creators or subject matter is just as likely to ban comic books for the same reason. If images of works by Frida Kahlo, Diego Rivera, or other Chicano artists can be banned (as was done with the removal of 500 Years of Chicano History in Pictures), it doesn’t seem so far fetched that works by the Hernandez Brothers and other Mexican American and Latino comics creators would become part of Arizona’s censorship spree.

Because of Arizona Revised Statute § 15-112, Tucson students were denied access to materials and curriculum in violation of the First Amendment. The FTRF amicus brief asserts that the statute is “so broad that Arizona teachers and school districts will be forced to avoid a substantial amount of non-prohibited instruction and material to ensure compliance. Thus, the statute will chill a substantial amount of instruction that is beyond the purported purpose of the statute.”

Arizona Revised Statute § 15-112 reads in part:

A.  A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:

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.
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

The law was challenged under the First (freedom of expression) and 14th Amendments (equal protection). The Ninth Circuit determined that § 15- 112(A)(3) was in violation of the First Amendment. They further determined that the other subsections stood up to scrutiny but that § 15- 112(A)(3) and § 15- 112(A)(4) did raise some constitutional concerns under both amendments. In the majority opinion, New York District Judge Jed Rakoff writes:

The very danger we perceive was corroborated, at oral argument, when we asked counsel for defendants whether the statute could be found to prohibit a public school course in San Francisco on the topic of Chinese history that was open to all students but was designed in consideration of the substantial Chinese and Chinese American student population there that might benefit from a greater understanding of its history. Defendants asserted that the course could be found in violation. As indicated by this example, subsection (A)(3) threatens to chill the teaching of ethnic studies courses that may offer great value to students— yet it does so without furthering the legitimate pedagogical purpose of reducing racism.

The opinion does not strike down the law, but the Ninth Circuit has sent the decision back to district court for reconsideration. The prior court had ruled against the students bringing suit on three of the four subsections, dismissing most of their First Amendment claims without evaluating the discriminatory nature of the law. However, the Ninth Circuit is demanding that the lower court review the student’s claims of discrimination. Rakoff writes:

…it is undisputed that the statute’s enactment and enforcement has had a disparate impact on Mexican American students… Not only were sixty percent of all TUSD students of Mexican or other Hispanic descent, but also ninety percent of students in the MAS program were such. Moreover, defendants concede that the statute was enacted in response to complaints about the MAS program and that the statute has been enforced only against the MAS program, even though two other ethnic studies programs in Arizona were alleged by the state superintendent to seemingly violate § 15-112.

Legal counsel for the plaintiffs shared their thoughts on the opinion:

In an important decision to advance equality and freedom of speech, the Ninth Circuit reversed the district court and held that a challenge to the Arizona law prohibiting Mexican-American studies courses raises claims that should go to trial.

In Arce v. Douglas, high school students challenged an Arizona law that dismantled the highly successful Mexican American Studies (MAS) program in the Tucson Unified School District. They argued that it was unconstitutionally vague and overbroad, discriminated based on viewpoint, and was enacted and enforced in discriminatory manner.

The district court in 2013 agreed that one of the provisions, which could outlaw any ethnic studies course, violated the First Amendment, but it granted summary judgment against the students on their other claims.

Importantly, the Ninth Circuit panel agreed that students have a First Amendment right to receive information and ideas and the provision that would outlaw virtually any ethnic studies course violated this First Amendment right.

Though the panel agreed with the district court that the other provisions were not vague or overbroad, it reversed the grant of summary judgment against the students on their discrimination claims. The court found that there was substantial evidence that the law was adopted out of a racially discriminatory animus and directed that the students’ equal protection discrimination claims be set for trial. Erwin Chemerinsky, dean of University of California Irvine School of Law, who argued on behalf of the students, notes, “The panel’s opinion is a key step on the path to having this very objectionable, discriminatory law struck down as violating equal protection and freedom of speech.”

Robert Chang, executive director of the Korematsu Center, who led the students’ legal team on appeal, commented, “We are pleased that the Ninth Circuit upheld a key finding of the district court, and we are excited for the opportunity to tell the plaintiffs’ story in court, that the students and the Mexican American community might yet find vindication.”

In ALA’s press release about the decision, executive director of the Freedom to Read Foundation Barbara Jones says:

“We are very happy that the students will finally have the opportunity for a full and fair hearing on their equal protection and First Amendment claims. FTRF remains steadfast in its support of the students’ right to receive information free from discrimination and looks forward to providing continuing support and assistance to the plaintiffs as they seek to vindicate their rights.”

You can view a PDF of the Ninth Circuit’s decision here. CBLDF will continue to follow the case and post updates as they become available.

Help support CBLDF’s important First Amendment work by visiting the Rewards Zonemaking a donation, or becoming a member of CBLDF!

To view CBLDF’s prior coverage of the MAS ban, click on the links below:

CBLDF Joins Amicus Brief Opposed to Arizona Law that Led to Ban of Mexican American Studies Books

TUSD’s Lift of Book Ban Draws Ire of Arizona Department of Education

Tucson School District Lifts Ban on Mexican American Studies Books

Embattled Mexican American Studies Program Finds Another Way

Court Upholds Law that Led to Tucson Book Ban

Move by Tucson School Board May Mean Overturn of Book Ban

Effort to Return MAS Books to Classrooms Fails in Tucson

Tucson School District Blocks Renowned Chicana Author’s Visit

Protestors Take Over Tucson School Board Meeting

Tucson School Board Tightens Security

Latino and Native Authors Keep Tucson Book Ban in the News

Why Tucson Matters

CBLDF Joins National Organizations in Condemning Arizona School Censorship