Court of Appeals to Review Arizona Ban on Ethnic Studies

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A 2010 ban on ethnic studies in Arizona has gone before the 9th Circuit Court of Appeals earlier this week, and the federal court will be looking into the constitutionality of the law in addition to a provision that had been struck down by a federal judge in 2013.

The attorney for the state, Leslie Kyman Cooper, is arguing that the provision found to be unconstitutional in 2013 should be included again.

“The state is concerned that all of its students should receive the same foundational education, should be taught as individuals, should not be divided on the basis of groups, such as class or race,” Cooper said.

However, the judges were unsure how a course could not be intended for a certain ethnic group, but could include the history for that group, feeling that such a move could be considered discriminatory, reports Kate Sheehy for Fronteras.  A lower court had previously upheld the Arizona law in the 2013 decision that does not allow courses that promote discrimination against a race or class of people, those that are designed specifically for a particular ethnic group, or promote ethnic solidarity over treating people as individuals.

In terms of the 2013 decision, the judges said that the provision did not add anything to the law that was not covered somewhere else.

“Therefore, it had the very great danger of either it was prohibiting something that constitutionally couldn’t be prohibited or it just invited over breath, invited vagueness, because it served no obvious purpose,” Judge Jed Rakoff contended.

According to the plaintiffs’ Attorney Erwin Chemerinsky, the entire law has been implemented for discriminatory purposes, violating the First Amendment rights of all students.

“When a law is vague and overbroad and it has the tremendous sanctions that this law does, then it risks chilling a tremendous amount of speech and that interferes with what this court has recognized, and the Supreme Court has recognized, as a right of students to receive information,” Chemerinsky said.

The ban had been approved in 2010.  After being put in jeopardy of losing funding, Tucson Unified School District in 2012 finally honored the restrictions.  The district discarded its Mexican-American studies program, which resulted in angry parents and teachers, who felt the course increased student achievements.  In response, the groups sued the state, claiming the law was too broad and violated freedom of speech.

However, judges felt that the courses were “designed primarily for peoples of a particular ethnic group” and were not unconstitutionally vague.

State officials are now claiming the school district is violating the ban, placing it in danger of losing $14.2 million in annual funding.

In his last days in office, former Arizona Superintendent John Huppenthal issued a report claiming the district was in violation, using an introductory hip-hop course from the perspective of African-Americans and lyrics from the band Rage Against the Machine as examples of such violations.

New Superintendent Diane Douglas is in agreement that the district is in violation of the ban, but not through the curriculum.  Instead, she says the problem rests in the way the course is taught.