SAN FRANCISCO — Judicial scrutiny of an Arizona law that led to the dismantling of TUSD’s Mexican American Studies program is raising questions whether the state sought to deny minority students access to programming that would improve educational outcomes.
The question was raised by a three-judge panel at the U.S. 9th Circuit Court of Appeals Monday in a case led by two Tucson teens — Maya Arce and Korina Lopez — who are seeking to have the law overturned. The court did not render a decision Monday.
The law in question prohibits courses that promote the overthrow of the United States government, promote resentment toward a race or class of people, and advocate ethnic solidarity rather than the treatment of pupils as individuals.
An attorney for Arce and Lopez — who have both attended or are attending Tucson Unified School District schools — argued the law is overly-broad, vague and in violation of the Constitution, impacting students’ rights to not only receive information but also students’ own freedom of expression.
Citing research that found TUSD’s ethnic studies program to be successful in improving academic outcomes for Mexican American students, attorney Erwin Chemerinsky argued the law was designed to deprive Mexican-American students of the benefits of such a curriculum.
While the appellate judges pointed out teaching is a government activity and the state has the power to direct what is to be taught, questions were raised about why the state would reject such an effective course of study.
“If the state rejects a program that is more effective in educating children, doesn’t that suggest or strengthen the inference that the reason the state is acting is not because it wants to produce better educated children?” asked Judge Richard Clifton. “This program does that, according to this evidence. It seems to me it strengthens the argument that the state’s regulation is intended with discriminatory intent.”
Senior District Judge Jed Rakoff backed Clifton’s observation, asking if a Chinese history course in San Francisco that was open to all but was especially effective in helping Chinese students to understand their history would be outlawed in Arizona, to which Attorney Leslie Kyman Cooper on behalf of the state replied, “It could be, yes.”
“Why? How does that not suggest discriminatory animus — we don’t want minorities to develop any kind of ethnic pride?” Rakoff asked.
Cooper explained it is not the purpose of public schools to develop ethnic pride.
“Then you’ve got a problem with the potential inference that the intent of the statute is to ensure that certain groups don’t emerge,” Clifton responded.
Despite the court’s argument that the program’s impact on student achievement was of importance, legal counsel for the state argued the “purported affect” of the classes was irrelevant and that enacting the law falls well within the state’s authority over curriculum.
In addition to asking the court to uphold the law, the state asked that one provision which was struck down by the lower court, prohibiting courses designed primarily for pupils of a particular ethnic group, be reinstated.
That request seemingly hurt the state’s case as the judges repeatedly stated that the provision could suggest discriminatory intent and questioned if one piece of the statute is unconstitutional, should the entire law be reconsidered.
Following the hearing, both Arce, a Tucson High Magnet School junior, and Lopez, a TUSD graduate and University of Arizona freshman, were confident the court would rule in their favor. Arce and Lopez are the daughters of ethnic studies educators Sean Arce and Lorenzo Lopez Jr.
The pair got involved in the fight after they were denied the opportunity to take Mexican American Studies classes as they had intended to, and were hopeful a favorable decision would protect that right for students across the country.
“I think this case reflects the struggles of the Tucson community and it can apply to anywhere in this country,” Lopez said.
Added Arce: “To study my history, my culture, my literature and art is a basic human right.”
