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Az. Ban on Mexican American Studies Ruled Partly Unconstitutional

By Casey C. Sullivan, Esq. on July 08, 2015 3:59 PM

Arizona shares a border with Mexico and Mexican-Americans make up a bit under a third of its citizens. Prior to the Mexican-American War, Arizona was even a part of Mexico. Despite the facts, Arizona declared ethnic studies illegal in 2010 and quickly banned Tucson's Mexican American studies program.

The state's attorney general at the time said that high school classes focusing on Mexican American history were "propagandizing and brainwashing." Tucson school board members feared that teachers were indoctrinating students through burritos -- seriously. The Ninth Circuit, thankfully, brought a little sanity back into the conversation, ruling this Tuesday that the law was at least partially unconstitutional.

A Broad Law, Targeted at a Very Specific Program

Tucson's Mexican American studies (MAS) program had been credited with engaging the school district's students, largely of Mexican descent, in their studies, increasing graduation rates, and providing students with important lessons about the state's history. Opponents, however, viewed it as promoting ethnocentrism and resentment against whites.

In response to concerns about the program, the state legislature passed H.B. 2281, which prohibits public and charter schools from offering 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
4. Advocate ethnic solidarity instead of treatment of pupils as individuals

The law was openly designed to shut down the MAS program and quickly did so, leaving all other "ethnic studies" programs, from African American history to British literature, untouched.

Just the Faintest Hint of Discriminatory Intent

Ten teachers of Tucson's MAS sued, arguing that the law was illegal viewpoint discrimination, unconstitutionally overbroad and void for vagueness. First, the Ninth Circuit found that there were triable issues of fact as to whether the enactment and enforcement of the law was motivated by discriminatory intent. The Ninth noted that legislators had accused the MAS program of inciting "racial warfare," denounced students' "Raza teachers," and rejected their own auditors' findings that MAS did not violate the law.

Further, the Ninth held that the law was at least partially unconstitutional. The court found that language restricting course design focused on racial resentment or ethnic solidarity was not unconstitutionally overbroad, but that it's prohibition on classes designed for "particular ethnic groups" was. As the Ninth noted, such a provision would prohibit both classes designed to stoke racial tensions and those simply targeted at populations that could benefit from specific courses. The broadness of the prohibition "chills the teaching of ethnic studies courses that may offer great value to students."

The Ninth did not reach the issue of whether providing burritos to students was political indoctrination.

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