Rush to Judgment: Ninth Circuit revives race discrimination claims brought By Latino students against Arizona education officials

Arce v. Douglas, No. 13-15657, 2015 DJDAR 7887 (9th Cir. July 7, 2015).

In the 1990s, the Tucson public school district–with a student population exceeding 60% Mexican or other Hispanic heritage children–implemented a “Mexican-American Studies Program” (MAS). It was designed to “provide a culturally relevant curriculum for students from kindergarten to 12th grade by incorporating historical and contemporary Mexican-American contributions into coursework and classroom studies.”

The program drew criticism from the Arizona Superintendent of Public Instruction, who sponsored a state statute enacted in 2010 prohibiting any public school districts from including in their curricula any courses which “promote resentment towards a race or class of people;” are “designed primarily for pupils of a particular ethnic group;” “advocate ethnic solidarity instead of the treatment of pupils as individuals;” and/or, just for good measure, “promote the overthrow of the U.S. government.”

In 2011, the new Superintendent of Public Instruction (the prior one having just been elected state Attorney General) found that the Tucson MAS program violated the new law, and gave the district 60 days to eliminate the program or have its funding reduced. He made this finding to reaffirm the out-going superintendent’s premature finding of a violation (it was made even before the effective date of the new law), and in spite of an independent auditor’s finding–which the superintendent’s office had commissioned–that the MAS program did not violate the new law.

Various teachers and students from the school district sued, alleging an array of constitutional challenges to the new statute and its enforcement, including various First Amendment challenges as well as an equal protection claim that the statute was motivated by an intent to discriminate against MAS students on the basis of race and national origin.

The district court mostly granted summary judgment to the defendants, except as to plaintiffs’ First Amendment “overbreadth” attack on the statute, and in fact the district court granted summary judgment sua sponte to defendants on plaintiffs’ race discrimination claim. On appeal, a divided Ninth Circuit panel upholds the judgment as to the First Amendment claim, and reverses and remands for trial on the plaintiffs’ equal protection claim; the court observes that the (two) superintendents’ rush to find the MAS program in violation of the new law, especially in light of the contrary findings of the auditor commissioned by the superintendent, raises genuine issues of fact on plaintiffs’ claim of discriminatory intent.

Plaintiffs are represented by constitutional scholar Erwin Chemerinsky in this case, which has attracted national attention, with civil rights and education advocacy groups from both sides of the political spectrum participating as amicus curiae.