Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 1 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

THOMAS C. HORNE Attorney General Firm Bar No. 14000 Thomas C. Horne, No. 002951 Kevin D. Ray, No. 007485 Jinju Park Hurtado, No. 026023 Assistant Attorneys General 1275 West Washington Street Phoenix, Arizona 85007-2926 Telephone: (602) 542-8328 Facsimile: (602) 364-0700 Email: EducationHealth@azag.gov Attorneys for Defendants John Huppenthal, Superintendent of Public Instruction, in his official capacity; and the State Board of Education and its individual members, named in their official capacity as nominal parties IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MAYA ARCE, et al., Plaintiffs, and NICHOLAS DOMINGUEZ, et al. Intervenors, vs. JOHN HUPPENTHAL, Superintendent of Public Instruction, in his Official Capacity, et al., Defendants. I. SUMMARY. A. As a Matter of Law, Students Have No First Amendment Rights to Dictate Curriculum to the Schools. Honorable A. Wallace Tashima Case No. CV-10-623-TUC-AWT REPLY IN SUPPORT OF SUPERINTENDENTS CROSSMOTION FOR SUMMARY JUDGMENT

The following crucial distinction between two entirely separate concepts should establish the Superintendents right to summary judgment on the First Amendment issue:

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 2 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
1

In one type of case, where students may have First Amendment claims, the State prohibits certain types of speech against students or teachers, or others, and assesses a penalty directly against them if they violate the prohibition (which A.R.S. 15-112 does not do). Or, the State expressly bans students from reading certain books, and bans those books from the library (which A.R.S. 15-112 does not do). The statute does not do it, and neither does the Superintendent.1 All of the cases cited by Plaintiffs fall into these categories. It is completely inapplicable here. Our statute prohibits districts from offering certain courses which are inconsistent with the States curricular choices. All sanctions run against the school district, not against students. The State has not made any sanctions applicable directly against students or teachers. The statute does not prevent the discussion of any topic: it does not prevent the discussion of the Declaration of Independence. It does not prevent the discussion of the 9/11 attacks on the World Trade Center or the Pentagon. It does not prevent the discussion of anything. All of the cases cited by Plaintiffs pertaining to the First Amendment are therefore inapplicable to this case. The second type of case is where people disagree with the curriculum set by the state. The Arizona Supreme Court has held that the State of Arizona is responsible for public education, a duty it cannot delegate. Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 239, 8778 P.2d 806, 812 (1994); A.R.S. 15-341 (delegating a limited authority to school district governing boards to prescribe and enforce policies and procedures for the governance of the schools, not inconsistent with law or rules prescribed by the state board of education) (emphasis added). Part of this duty is to set standards and curriculum for the state. Deciding on one curriculum, and rejecting a second curriculum, is not a violation of the First Amendment rights of those who wish it had adopted the second curriculum. The United States Supreme Court has been crystal clear on this subject: The question whether the First Amendment requires a school to tolerate particular student speech the question that we addressed in Tinker is different from the question whether the First Amendment requires a school See Affidavit of Kathy Hrabluk 9.

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 3 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
2

affirmatively to promote particular student speech. The former question addresses educators ability to silence a students personal expression that happens to occur on the school premises. The latter question concerns educators authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. Hazelwood Sch. Dist v. Kuhlmeier, 484 U.S. 260, 270-71 (1988) (emphasis added) Similarly: A teachers curricular and pedagogical choices are categorically unprotected. Evans-Marshall v. Bd. Of Educ. Of the Tipp City Exempted Village Sch. Dist., 624 F.3d 332, 342 (6th Cir. 2010) (emphasis added). As discussed below in Section III, every single Circuit that has considered this issue has ruled the same way: 11 cases in 7 circuits. It is therefore respectfully submitted that the Superintendent should be entitled to summary judgment on the First Amendment issues. B. As a Matter of Law, There Is No Valid Facial Challenge to This Statute for Alleged Vagueness.2

The Ninth Circuit presume[s] statutes are constitutional. Sea River Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 669 (9th Cir. 2002). Facial invalidation is, manifestly, strong medicine that has been employed by the court sparingly and only as a last resort. Natl Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998). Courts must construe statutes to uphold their validity if possible. Robertson v. Seattle Audubon Socy, 5032 U.S. 429 (1992). Because plaintiffs cannot show that A.R.S. 15-112 affects their First Amendment Rights, they must show that the law is unconstitutional in all its applications to prevail on their facial challenge. Humanitarian Law Project v. U.S. Treasury Dept, 578 F. 3d 1133, 1146 (9th Cir. 2009). They cannot do so here. Plaintiffs Reply argues that the statute itself must define terms, and that dictionary Wherever Plaintiffs summarize their claims (e.g., motion pages ii,7), they present three theories: 1. The statute does not provide notice as to what constitutes a violation; 2. It grants a subjective power of enforcement; 3. It violates the First Amendment. As Plaintiffs recognize in their Reply at page 20 lines 19-22, the first and second theories fall under the Fourteenth Amendment prohibition against vagueness. This Reply in Support of the Cross Motion is organized under two headings, First Amendment and Alleged Vagueness. We subdivide our analysis of alleged Vagueness under facial and applied challenges.

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 4 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

definitions cannot be used to avoid alleged ambiguities in the statute itself. This is incorrect. It is supported by no authority. On the contrary, the first rule of statutory construction is to look at the words in the statute and to give those words their ordinary meaning. United States v. Lettiere, 640 F.3d 1271 (9th Cir. 2011). Dictionary definitions help give ordinary meaning of the words that are not explicitly defined in the statute. Id. A statute is unconstitutional if it fails to give notice to people of ordinary intelligence concerning the conduct it prescribes. Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir. 1984). It is disingenuous to suggest that persons of ordinary intelligence would not understand what it means to promote resentment against another race. The same is true of understanding the fundamental American principle of treating people as individuals, on their individual merit, rather than on the basis of the race they were born into. Plaintiffs have no arguments to show ambiguity other than hypotheticals which are fallacious because they assume a statute which prohibits students from discussing issues, which our statute does not do. An independent, objective Administrative Law Judge (ALJ) found the statute sufficiently clear to apply it and to conclude that the MAS Program violated the statute. (Doc. 162-9, 162-10.) And, because the MAS Program clearly violated the statute, Plaintiffs cannot complain that the statute is vague. Hunt v. City of Los Angeles, 638 F.3d 703, 710 (9th Cir. 2011). For example, the statute prohibits a course primarily designed for students of a particular race. The man who designed the course testified that it is an attempt to connect with our indigenous sides, as well as our Mexican side. (Doc. 68-2 at 4.) Obviously the course is designed primarily for pupils of a particular ethnic group, and the statute cannot be considered vague in every application. C. As A Matter Of Law, There Is No Valid As Applied Challenge To This Statute For Alleged Vagueness.

Plaintiffs argue that the law is vague as applied because it is allegedly being enforced in a discriminatory or arbitrary manner: to TUSD's MAS Program but not other Ethnic Studies courses. Plaintiffs provide no facts to rebut the presumption that the Superintendent

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 5 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

is honestly enforcing the law with integrity. See Canatella v. California, 404 F.3d 1106, 1112 (9th Cir. 2005) (according state adjudicators a presumption of honesty and integrity). The Superintendent enforced the law against TUSDs MAS Program and not other ethnic studies courses because of the volume of complaints and evidence against MAS that demonstrated that it was conducted in a racist and propagandistic manner. Further, the Superintendent received no complaints against any other ethnic studies courses. As required by State law, the Superintendent has a duty to investigate complaints against school districts. A.R.S. 15231.01. The Superintendents enforcement action was based on the fact that the MAS Program violated the statute in a substantial manner, not from racial bias.3 Furthermore, there is no violation where the plaintiff has the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process. Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498 (1982). Here, the ALJ gave a reasonable interpretation, acknowledging that instruction regarding oppression could have the natural but unintended consequence of racial resentment or ethnic solidarity. But, he found that the MAS Program violated the law because it presented material in a biased, political, and emotionally charged manner. Plaintiffs acknowledge that state court decisions can be used to clarify the meaning of statutes (Doc. 167, at 23), but fail to acknowledge that the same is true of Administrative Decisions. See I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (according Chevron deference to the Board of Immigration Appeals adjudication of a case pursuant to an ambiguously worded statute). The Administrative Decision in this case gives a clear and reasonable interpretation of the statute. It is therefore respectfully submitted that the Superintendent should be entitled to summary judgment on the issues relating to alleged Vagueness, both facially and as

Plaintiffs may have complaints about actions of TUSD after the districts decision to suspend the MAS Program; however, their complaints about any actions of the district cannot be attributed to the Superintendent or the statute at issue. To date, there has not been any onsite monitoring by the State. See Affidavit of Kathy Hrabluk 9. The Plaintiffs complaints regarding classroom monitoring need to be made to TUSD, not the Superintendent.

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 6 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

applied. II. FACTS APPLICABLE TO THIS CROSS MOTION. A. Importance to the Cross Motion of the Facts Presented Here.

Plaintiffs cite Peoples Choice TV Corp. v. City of Tucson, 202 Ariz. 401, 414 (2002) for the proposition that the Court should construe the statute as a whole, and consider its context, language, subject matter, historical background, effects and consequences and its spirit and purpose. (Doc. 91 at 10) (emphasis added). We agree. Evidence that the independent and objective ALJ found this course was presented in a biased, political, and emotionally charged manner, is important to show the context, historical background, spirit, and purpose of this law. Furthermore, Plaintiffs have made a number of personal attacks on the Superintendent, alleging racial bias, without any competent support. These baseless personal attacks can be rebutted by showing the evidence that the Superintendent had of the racist nature of this course, which required him to take action. For example, Plaintiffs alleged that the statute was conceived by biased office holders who fear and resent educated, articulate Latinos. (Doc. 164 at 38) (emphasis added).4 If this were not privileged because its contained in a pleading, it would be libelous. Both Superintendents involved in this case have worked hard to improve the academic performance of Latino students. The facts set forth below show the reasons for their actions, which stemmed not from their racial bias, but from a determination to prevent the schools from teaching and indoctrinating the students with racial bias. B. Affidavit of John Ward.

John Ward, despite his Anglo sounding name, is a teacher of Hispanic descent. The personal observations set forth in his affidavit, though not current,5 are important to show the
4

Other examples can be found in Plaintiffs Reply Doc. 164 at 33, n.133, and in Doc. 91 at 34.

As former plaintiff to this lawsuit and MAS Director Sean Arce acknowledged through his sworn testimony in the Administrative Hearing, there have not been any major changes in the curricular materials available to MAS teachers since the enactment of A.R.S. 15-112. (See Doc. 132-1 30.)

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 7 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

context, historical background, spirit and purpose, of the statute at issue here. Peoples Choice, 202 Ariz. at 414. This information was presented to the Department of Education prior to the passing of the statute, and was referred to in the initial findings by Superintendent Horne. Ward taught an American History from a Chicano Perspective Class at TUSD. (See Affidavit of John Ward 2.) MAS teachers from the district office took over his class on a daily basis. (Id.) He observed that they indoctrinated students in the belief that there is a war against Latino culture perpetrated by a white, racist, capitalist system. (Id. 8a.) The teachers and administrators in the MAS program were radical socialist activists who promoted an anti-capitalist and anti-Western Civilization ideology. They use ethnic solidarity as their vehicle of delivery. The teachers and administrators in the MAS Program were vehemently opposed to the culture of the United States and indoctrinated their students with this message. (Id. 3.) MAS staff promoted racial and ethnic solidarity among students and fostered an us versus them mentality. (Id. 4.) Accepting the MAS staffs views was a litmus test for students to demonstrate that they were Raza in other words a proud member of their ethnic group. (Id.) The whole inference and tone of the MAS Program was anger. The MAS teachers aggressively promoted an ideological agenda that taught students that the United States was and still is a fundamentally racist country to those of Mexican-American descent. (Id. 8a.) They taught students that they were victims who were oppressed by a white, racist, capitalist system. (Id.) Comments to MAS students such as: [y]our Anglo teachers dont want you in AP (advanced placement) classes because they do not want you to succeed. This is how Anglos keep us on the bottom illustrate the constant victimization of the MAS students. (Id. 5.) The MAS teachers literally reprogrammed the students to believe that a white power structure conspired to suppress them and relegate them to a second-class existence. (Id. 8b.) This fomented resentment and resulted in visible contempt for all authority outside of their ethnic community and their total lack of identification with a political heritage of this country.

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 8 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

(Id.) As a result, students who enrolled in the classes went through a change. They became angry, distrustful of teachers, and disrespectful of authority due to the curriculum of the MAS Program classes. (Id.) The teachers did not allow for any balance on the controversial issues, but advocated only views and ideas that were consistent with their ideology and demeaned opposing viewpoints. (Id. 3, 8a.) The MAS program required intellectual conformity based on the ideology held by MAS staff. (Id. 10.) They actively suppressed intellectual diversity and celebrated conformity when it aligned with their partisan ideology. (Id. 3, 4, 10.) The MAS teachers further undermined the integrity of the educational process by teaching unscientific myths to the students as though they were true. (Id. 9.) For example, the first half of the course was all about the Aztecs, because the teachers wanted the students to identify themselves as being in the tradition of the Aztecs, as native to North America. (Id.) They taught students it was a White racist myth that the Native Americans crossed over the Bering Straits from Asia, and that they really originated in the Americas. (Id.) They also taught them that is was a White racist myth that the Aztecs engaged in human sacrifice, notwithstanding the substantial historical evidence that human sacrifice was part of the Aztec ceremonies. (Id.) According to the MAS staff, this misinformation was an attempt to dehumanize Mexican American students and their ancestors in order to justify oppressing them. (Id.) A climate of outright intimidation stopped many other teachers from standing up to MAS teachers for fear of being labeled racists. When John Ward criticized the MAS Program, the TUSD administrators removed him from his class. (Id. 6-7) The administrators called him a racist, despite his being Hispanic. (Id.) This fundamentally antiintellectual tactic stopped any debate by bullying and intimidation that threatened to destroy the reputation of those who would provide another viewpoint. This intimidation was used against anyone who criticized the MAS Program. (Id.)

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 9 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

C.

Affidavit of Hector Ayala.

Hector Ayala currently teaches English at Cholla High School in TUSD. (See Affidavit of Hector Ayala 1.) He was born in Mexico. (Id. 4.) He has observed that the MAS program teaches a separatist political agenda. (Id. 3.) His students have told him that their MAS teachers taught them not to fall for the white mans traps. (Id. 3a.) One non-Hispanic student who was enrolled in an MAS course complained to him that he was being dissed in the classroom because I am white. (Id. 3b.) He disagrees with the political beliefs of the MAS Program and has been public in his disagreement. (Id. 4.) As a result, Auggie Romero, one of the founders of MAS, who was a teacher at Cholla High School at the time, accused him of being an agent of the white man. (Id. 4a.) He called him a coconut and told his students that he was a racist. (Id.) As a Mexican-American born in Mexico, he found this to be offensive. (Id.) D. Declaration of Prewitt Howie.

Prewitt Howie taught English for three years through May 2010, at TUSD. (See Declaration of R. Prewitt Howie 1.) During the 2007-2008 school years, she taught in a classroom that was divided from another classroom by a moveable partition. (Id. 2.) Through that partition, she could hear lectures given by a teacher, later identified as Jose Gonzalez. (Id. 2, 4.) Jose Gonzalez told his students that the University of Arizona is a racist organization because only 12% of the students are Latino. (Id. 3.) He told his students they should go to college so they can gain the power to take back the stolen land and to give it back to Mexico. (Id.) And, he told his students that the United States is a meritocracy and that Latinos are not a part of it. (Id.) She discovered later into the semester that this teacher was Jose Gonzalez, a Mexican American Studies Program administrator. (Id. 2, 4.) They discussed the contents of the course. (Id. 4.) He told her that he teaches his students that Republicans hate Latinos and that legislation proves it. (Id.) When she asked him about Mexican American Republicans

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 10 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

who are against illegal immigration, he said this is an example of self-racism. (Id.) E. Declaration of Rob Silverman.

Ron Silverman taught at TUSD for eight years. (See Affidavit of Ron Silverman 1.) He observed that the MAS Program curriculum employs brainwashing practices that results in marked changes in the students. (Id. 2.) While he was teaching at TUSD, he criticized the veracity of information disseminated in the MAS history class for failing to provide any primary source material and actual historically documented facts, as opposed to feel good information. (Id. 3.) As a result of his criticism, some MAS history teachers, including Sean Arce and Curtis Acosta, called him racist and openly encouraged their students to call him a racist as well. (Id. 4.) F. Sworn Testimony at the Administrative Hearing.

Plaintiffs Reply argues that the findings of the independent ALJ are not admissible, forgetting that it was the Plaintiffs attorney who introduced the transcript into the record and has cited it repeatedly. Federal Rule of Evidence 201 allows the Court to take judicial notice of the adjudicated facts from the administrative hearing. Further, in response to Plaintiffs position, we have filed the sworn testimony that was presented at that Administrative Hearing, and summarize some of its more important points here: The programs founder, Augustine F. Romero, and the program administrator, Sean Arce, argue that the founders of the nation created a structure that is racist and oppressive in nature. (Administrative Hearing Transcript [Tr.] at 75, 94, 143, 199, and 228, attached hereto as Exhibit A.) After stating that Americas current culture was racist and oppressive, they discussed the role of critical educators in schools, stating that [t]he critical educator cannot wait for the dominant group or the American structure to correct itself. The critical educator must understand that the oppressors cannot see the nature of their ways. (Id. at 25, 111, 144.) They called the American culture a dominant group that was incapable of critical reflection. (Id.) They blamed this on the Anglo-Saxon culture that the Founding Fathers spread by methods that range from enslavement to educational indoctrination to

10

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 11 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

forced containment on reservations to genocide. (Id. at 111, 144, 228.) Using this basic theory that the American culture was oppressive and racist, the founder of the MAS Program and the former Plaintiff and MAS Program Director created a program designed for Mexican American students because [t]he failure to equitably address issues of culture within the context of the American structure is simply an act of the perpetuation of the structures racist and oppressive nature. (Id. at 75, 143.) In doing so, they established a modified pedagogy based on Paolo Freires6 theories that was a deliberate attempt to racismize this process of education. (Id.at 4, 111, 145, 146-47, 226.) Racismization, according to Arce, was the process of looking at issues with a racial lens. (Id. at 146.) Arce and Romero saw themselves as emancipatory educators who grounded their pedagogy in racismized education. (Id. at 146-47.) This pedagogical methodology was based on the belief that failure to look at issues with a racial lens would place MAS educators in the role as agents of injustice. (Id. at 147.) They gave this racismized pedagogy a name, calling it barrio pedagogy. (Id. at 94, 145-46, 149, 226.) Former plaintiff and MAS program administrator, Jose Gonzalez, provided handouts and teacher cheat-sheets to the MAS teachers teaching them to teach certain ideas to the children. (Id. at 182.) As part of the curriculum recommended for kindergarten through fifth grade, Jose Gonzalez advocated exposing students to negative or racist events in our history as a country. (Id.) He focused the lessons on identity and focused on teaching elementary school children that American History was, at its core, dehumanizing and an attack on their identity, particularly the Americanization programs of Mexican-American children in the southwest. (Id.) In one Teaching Points Cheat Sheet that purported to give teachers some recommendations with regards to their instruction as part of the MAS curriculum, Gonzalez used the hypothetical example of a teacher telling a student to speak English as a manifestation of internalized oppression or self-hate. (Id.) Curricular texts for the MAS courses informed young students that [i]f you are white,
6

Freire describes himself as a Marxist.

11

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 12 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

English-speaking, and your ancestors come from the right region of the world, all of the equality amendments and civil rights statutes apply to you. If you are of a different hue or origin and/or prefer to speak a language other than English, you cannot insist on equal treatment or equal protection of the law. (Id. at 17, 68.) They taught a narrowly focused, biased perspective of American history from texts such as Why We Dont Know Our Indigenous Culture by Alfredo Acosta which contains passages such as the following: With the exception of genocide, one of the worst crimes committed by the European invaders against indigenous peoples was the destruction of nearly all their culture, thought beliefs, traditions, and language. This atrocity has left the majority of the hemispheres indigenous population in disarray and confusion as to their true identity. (Id. at 13.) The texts advocated political activism by teaching young and impressionable elementary age children that Raza resistance has never died and that is the message of this book we saw that the enemy wasnt simply the gringo but a system that dictated how U.S. society should be organized, capitalism, imperialism, socialism racism. (Id. at 19, 39.) The MAS teachers used PowerPoint slide shows such as Social Justice, Social Transformation, and Cultural Competency to teach their students that the definition of racism was [a] doctrine of racial supremacy that advocates the superiority of one race over all others. Within the United States of Americas political, social, education and economic systems White Supremacy [sic] is most often advocated, reproduced and perpetuated. (Id. at 17, 42.) Sean Arces lesson plans included the following pre-instructional information: It is the accompanying dehumanization that is carried out through the master narrative that has been used to manipulate, oppress and subjugate the Mexicano/Chicano people as well as to justify the atrocities that have been and continue to be committed against them. (Id. at 179.) Accompanying this lesson, Arce recommended that teachers teach from portions of a text by Roberto Rodriguez, which advocated political activism by saying that: the Americanization movement is for the Raza whom remains, who refuse the big lie. It is for those who view themselves as indigenous who dream of Aztlan [the Southwest U.S. which is to be returned to Mexico or broken off from the U.S.] and who question the right of those who landed Plymouth

12

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 13 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Rock to pass judgment on us. (Id. at 180.) MAS students were told repeatedly and given numerous examples that white people hate Mexican Americans by their teachers a concept, which Mr. Stegeman (a member of the TUSD School Board who supported MAS until he observed it) testified is a mechanism to generate hatred. (Id. at 62.) An activity sheet stated that Mexican treatment, particularly in relationship to land disputes, at the hands of whites has also historically been marked by the use of force, fraud and exploitation. (Id. at 263.) This kind of indoctrination began at the elementary school level. A lesson plan for an elementary MAS course introduced the lesson by stating: this past year, 2005-2006, was a year of the Minute Men, immigration reforms, walkouts, and lots of demonstrations in support of immigrants reaffirming that they are not alone in their struggle for freedom. [. . .] Hopefully with a little knowledge, students will be able to comprehend some of the actions and reactions of our people. (Id. at 251.) Purportedly providing a historical perspective (id. at 164), lessons consistently reinforced the political message to students that they were a member of a group: MexicanAmericans, Chicanos, Latinos (id. at 271) who were always the oppressed group (id.). The assignments the MAS teachers gave their students were not academically beneficial and did not attempt to develop critical thinking. (Id. at 269.) Instead, it presented material designed to arouse emotions in one direction about a group of students who were designated as oppressed. (Id.) Former plaintiff, Curtis Acosta asked his students to write a lesson based on a reading. It instructed students to respond to the following direction: The audience encounters Mexican and Chicano individuals that exploit or views people of their own cultural or ethnic heritage. Simultaneously, the immigration laws of this country, which are largely created by middle-aged European American men, serve as the framework which creates this environment for exploitation and abuses. In a well-conceived essay, compare the ethical issues along ethnic lines. (Id. at 67.) Similarly, a final exam question for Chicano Literature did not discuss literature, but asked the students a political question: All year long we have read stories where the Mexican Americans were

13

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 14 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

discriminated against, taken advantage of, oppressed, et cetera. We are destined to repeat history if we dont do something to change it. Reflect on what we have read about this year and, in an essay, write about what we can do as a group to change things. What will you do as an individual to change things? Select one of the pieces that best reflects the point that you are trying to make in your essay. (Id. at 258.) This type of assignment is consistent with the classroom activity. Mark Stegeman, (the TUSD Board member who changed his mind after observing the program) testified at the administrative hearing that he had visited former plaintiff Curtis Acostas classroom on that day (id. at 60) and watched students chant and clap in unison, ending with the phrase: we must be willing to act in a revolutionary spirit. (Id.) Board Member Stegeman testified that this behavior was cult-like, displaying elements of cult-like behavior, including some but not all of the following factors: identification with a collective whole, fostering hatred indirectly by reference to the hatred of others, using doctrine as a substitute for fact, depreciation of present circumstances, use of action as a unifier, use of theatrical and makebelieve displays, and inflaming of passions. (Id. at 61.) This constant propaganda resulted in the ostracization of non-Latino students. At a TUSD governing board meeting, Christina Cruz told the governing board that her daughter attempted to withdraw from a MAS class because she had no interest in learning why she should hate her white mother and love her Mexican father. (Id. at 79.) Another teacher/parent heard her (Caucasian) daughter express distress over the fact that the Hispanic students would not talk to her at all at the end of an MAS class semester. (Id. at 126.) Other TUSD teachers report that their students were dissed just for being white. (See Affidavit of Hector Ayala.) Contrary to Plaintiffs prior claims that the MAS Program was supported and adopted by the TUSD Governing Board, TUSDs Governing Board Members were concerned that teachers in the MAS Program were teaching to indoctrinate based on racial issues. (Tr. at 74.) Charles Hicks, a member of the TUSD Board, testified that he was concerned that a us (Chicanos) versus them (Anglos) mentality was being created by the program. (Id.) Mark

14

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 15 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Stegeman wrote an editorial in the Arizona Daily Star pointing out that three fundamental problems with the program predated A.R.S. 15-112. (Mark Stegeman, TUSD needs community support, balanced ethnic studies, The Arizona Daily Star, Feb. 9, 2012, attached hereto as Exhibit B.) First, the process that created the MAS curriculum was so far out of compliance with state law and longstanding district policy. (Id.) Second, the critical race theory foundation of the MAS program and its emphasis on activism for particular causes raised serious concerns that may have violated TUSDs policies. (Id.) And, third, the MAS program reached such a small fraction of TUSDs Mexican American population that it had no appreciable effect on the low average achievement of that group, with any evidence of higher student achievement being exaggerated. (Id.) Studies by the Department of Education found no benefit at all to academic performance. Teachers and community members saw that the inference and tone of the MAS Program was not empowerment, but anger. (Affidavit of John Ward.) Students who enrolled in the classes went through a change becoming angry, distrustful of teachers, and disrespectful of authority due to the curriculum of the MAS Program classes. (Id.) The MAS pedagogy politicized the process of learning, making it extremely difficult for an elementary age child to separate the politicization from any other messages that the curriculum may have also conveyed. (Tr. at 28.) Students were rewarded for disruptive behavior such as chaining themselves to the chairs of the TUSD Board during a public meeting. (Id. at 66.) Such pedagogy only succeeded in its natural result: hostility, anger, resentment, lack of bonding, lack of community with other students in their classes. (Id. at 272.) Curricular materials and text books obtained from TUSD illustrate many examples of lessons that promulgate racial stereotypes, and that insert a kind of poisonous racism in the minds of the students. (Id. at 135, 151, 216.) Six examples follow, of many that could be given. These six are taken from the book, Courageous Conversations which was obtained from TUSD: 1. White people tend to dominate the conversation by setting the tone for how

15

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 16 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

everyone must talk and which words should be used. This statement promulgates stereotypes and is racist. It suggests that white people, because of their race, tend to dominate the conversation, and members of other races because of their race, do not. 2. All of these White ways must be recognized, internalized, and then silently acted on by people of color. This statement promulgates stereotypes and is racist. It suggests that there are white ways that white people have because of their race, and that people of color do not have these traits. 3. The aforementioned White cultural characteristics, such as individualism, blur into the consciousness of Whiteness, which becomes not only a way of behaving but also a way of thinking. This statement promulgates stereotypes and is racist. It suggests that white people, because of their race, believe in individualism. Many in the United States may believe that there is nothing wrong with individualism. But in this course, which uses as a primary text, a book by Paolo Freire, who describes himself as a Marxist, individualism is regarded as a negative trait, and is applied, not to the individuals who believe in individualism, but to a race on the basis of peoples membership in that race. 4. White people depend on the overwhelming presence of other White people in positions of power and influence to maintain a system of racial advantage. This statement promulgates stereotypes and is racist. It suggests that white people, because of their race, cannot achieve anything without depending on the overwhelming presence of other white people in positions of power, and cannot achieve by individual merit. 5. Many White educators believe that gains in school, as in their own lives, come from individual effort and accomplishment. This statement promulgates stereotypes and is racist. It suggests that white educators have no right to believe that gains in school come from individual effort and accomplishment, because in

16

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 17 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

the case of whites, because of their race, it comes from having other white people in positions of power. 6. White Americans often feel a unique sense of entitlement to Americanism, partly because many never travel beyond the borders of the United States. This statement promulgates stereotypes and is racist. It suggests that white Americans, because of their race, never travel beyond the borders of the United States. By implication, people of color are more likely to travel beyond the borders of the United States because of their race. These facts, and others in the transcript of the Administrative Hearing and its exhibits, strongly support the ALJs conclusion that this course was taught in a biased, political, and emotionally charged manner. In view of this evidence, there is a grim irony in the Plaintiffs claim that the Superintendent wants to put a pall of orthodoxy over the classroom (Doc. 164 at 12) that it is the Superintendent who wants to impose a single view point on students (id at 14) or that the Plaintiffs want a robust exchange of ideas (id.). As in the case of the lesson plans about the Aztecs, the facts are the precise opposite of the Plaintiffs claim. Robust exchange of ideas is precisely what the Superintendent wishes, and this propagandistic one-sided, course, is the precise opposite of a robust exchange of ideas. Finally, we have attached a Rule 56(d) Affidavit, stating that, if we were provided the time to take depositions we could show that portions of curriculum and of texts quoted were in fact used in these courses, if the Court felt that was needed. We expect that these depositions would also show additional racist aspects of these courses. III. AS A MATTER OF LAW, STUDENTS HAVE NO FIRST AMENDMENT RIGHTS TO DICTATE CURRICULUM TO THE SCHOOLS. In section I above, we noted the holding by the United States Supreme Court in Hazelwood, 484 U.S. at 270-71, that students First Amendment rights do not extend to requiring a school affirmatively to promote particular student speech, such as requiring the state to include in the curriculum a course that the state, in exercising its responsibility for curriculum, has decided to not include, or to prohibit. We also noted the holding in Evans-

17

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 18 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Marshall supra that a teachers curricular and pedagogical choices are categorically unprotected. 624 F.3d at 342. Every circuit that has considered this question has come to the same conclusion: Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3d Cir. 1990) ([N]o court has found that teachers First Amendment rights extend to choosing their own curriculum or classroom management techniques in contravention of school policy or dictates.); Ward v. Hickey, 996 F.2d 448, 453 (1st Cir. 1993) (a teachers principal classroom role is to teach students the school curriculum. Thus, schools may reasonably limit teachers speech in that setting.); Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 371 (4th Cir. 1998) (In the case of a public school, in our opinion, it is far better public policy, absent a valid statutory directive on the subject, that the makeup of curriculum be entrusted to the local school authorities.); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 795 (5th Cir. 1989) (The first amendment has never required school districts to abdicate control over public school curricula to the unfettered discretion of individual teachers.); Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Village Sch. Dist., 624 F.3d 332, 334 (6th Cir. 2010) ([T]he right to free speech protected by the First Amendment does not extend to inclass curricular speech of teachers in primary and secondary schools made pursuant to their official duties.); Webster v. New Lenox Sch. Dist. No. 122, 917 F.2d 1004, 1007 (7th Cir. 1990) ([W]e have already confirmed the right of those authorities charged by state law with curriculum development to require the obedience of subordinate employees, including the classroom teacher.); Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972) (holding that individual teacher has no constitutional prerogative to override the judgment of his superiors as to proper course content), cert. denied, 411 U.S. 972 (1973); Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 480 (7th Cir. 2007) (The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.); Lacks v. Ferguson Reorganized Sch. Dist., 147 F.3d 718 (8th Cir. 1998) (holding teacher had no First Amendment right to choose play with profane content as a part of drama class curriculum);

18

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 19 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Hetrick v. Martin, 480 F.2d 705 (9th Cir. 1973) (stating that pedagogical methods in classroom are not a protected form of speech), cert. denied, 414 U.S. 1075 (1973); Driscoll, 625 F. Supp. 2d 49, 54 (D. Mass. 2009) (Public officials have the right to recommend, or even require, the curriculum that will be taught in public school classrooms. Doing so is a form of government speech, which is not generally subject to First Amendment scrutiny); see also Zykan v. Warsaw Cmty. Sch., 631 F.2d 1300, 1307-08 (7th Cir. 1980) (finding that students had no more of a right to control their learning than teachers had control over their teaching and stating that whatever rights secondary students may have outside the classroom to meet and discuss with a particular teacher, that their interests do not afford them a right to be taught in the classroom by that instructor or in accordance with that teachers own sense of best material). Whatever limited First Amendment rights students have in the classroom, these rights do not extend to a students so-called right to learn what they want to learn or to work on assignments of their choosing. Plaintiffs are fundamentally mistaken in their belief that students (and teachers) may learn or teach whatever they wish. Plaintiffs desire to maintain the MAS Program as it existed, in perpetuity, does not translate to finding that they have a First Amendment right sufficient to compel the State to adopt their curricular preferences. The curriculum prescribed by the State is a fully protected form of state speech. Griswold v. Driscoll, 625 F. Supp. 2d 49, 54 (D. Mass. 2009) (citing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995)), and the State has the right to control the curricular requirements in its public schools. See Bd. of Educ. v. Pico, 457 U.S. 853, 864, 102 S. Ct. 2799, 2806 (1982); Ambach v. Norwick, 441 U.S. 68, 76, 99 S. Ct. 1589, 1594 (1979); see also Zykan, 631 F.2d at 1304 (upholding the school districts removal of certain books from English courses, the cancellation of certain courses, and the refusal to rehire certain faculty as educational decisions that necessarily involve choices regarding what students should read and hear in light of the formative purpose of secondary school education). The State has made the policy decision not to allow classes or courses of study that are ethnically divisive,

19

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 20 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

racist, or hateful to its public school children. A.R.S. 15-111. Plaintiffs cannot force the State to speak, under the guise of a constitutional challenge, or to adopt a students preferred curriculum. The Superintendent therefore respectfully requests that summary judgment be granted in favor of defendants on count two of the Plaintiffs Third Amended Complaint (Doc. 87) and the Complaint in Intervention (Doc. 168) and any First Amendment-related issues that may remain. IV. THE STATUTE IS NOT UNCONSTITUTIONALY VAGUE. A. A.R.S. 15-112 Is Not Vague on Its Face.

Plaintiffs have no basis to complain that the statute is vague. Because Plaintiffs cannot show that A.R.S. 15-112 infringes on their non-existent speech right to be taught what they wish to learn, they have no right to raise this claim on behalf of TUSD. Alleging that A.R.S. 15-112 is vague on its face, Plaintiffs draw a comparison between this statute and a school districts regulation that coerced a student to remove a visible tattoo on her hand in lieu of expulsion. (Doc. 167 at 25-26, citing Stephenson v. Devenport Community School Dist. at 110 F.3d 1303, 1305 (8th Cir. 1997).) This case is clearly inapplicable. The challenged law does not apply to the Plaintiffs. It prohibits public district schools and charter schools from including four enumerated types of courses in their curricula. A.R.S. 15-112(A). The choice of curricula and course of study is the focus of the law. Id. It prohibits actions taken by school districts and charter schools, not teachers or students. Id. It imposes sanctions on a school district or charter school that fails to comply, after notice and an opportunity to cure. Id. It does not impose civil liabilities or criminal sanctions on students. Id. Under these circumstances, Plaintiffs lack sufficient interest to make a vagueness argument. Furthermore, to prevail on a facial vagueness challenge, they must show that the law is unconstitutional in all its applications. Humanitarian Law Project 578 F.3d at 1146 (9th Cir. 2009). They cannot do so here. Plaintiffs allege that the statute is vague on its face because the statute does not define the terms it uses and the dictionary definitions cited by the

20

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 21 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Superintendent are insufficient to give meaning to common terms used in the statute. (Doc. 167 at 23.) This is a specious argument. When testing a statute for vagueness, the courts employ traditional tools of statutory construction to determine a statutes allowable meaning. Cal. Teachers Assn v. State Bd. of Educ., 271 F.3d 1141, 1147 (9th Cir. 2001) (quoting Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294, 2300 (1972)). The first rule of statutory construction is to look at the words in the statute and to give those words their ordinary meaning. Lettiere, 640 F.3d at 1274. Courts look at the ordinary meaning or dictionary definition of a term to ascertain the meaning of a statutory term when the term is not defined by the statute.7 Id. A statute is unconstitutional if it fails to give notice to people of ordinary intelligence concerning the conduct it prescribes. Schwartzmiller, 752 F. 2d at 1345. Plaintiffs do not make any attempt to show that any part of the statute is actually ambiguous. Rather, they present false hypotheticals about subjects students might not be able to discuss: the Declaration of Independence, 9/11, etc. But the statute does not prohibit student discussion of anything. It applies only to the district as to its classes or courses of study, not to specific areas of student discussion. The hypotheticals are irrelevant to this statute. Plaintiffs speculation about possible vagueness in hypothetical situations that are not before the court will not support a facial attack on a statute that is valid in the vast majority of its intended applications, when viewed as a whole. Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, 1021 (9th Cir. 2010). Plaintiffs fail to meet their burden of showing that the law is unconstitutional in all its applications. Humanitarian Law Project, 578 F.3d at 1146. As a result, their claim of facial vagueness fails.8

No case exists to support Plaintiffs claim that a statute must define the individual terms used within its text. 8 However, even if the Plaintiffs were able to meet their high burden of proving facial unconstitutionality, they have no basis for complaining of its vagueness because the statute does not apply to them at all.

21

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 22 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

B.

A.R.S. 15-112 Is Not Vague As-Applied.

Plaintiffs argument that the law is vague as-applied because it allegedly is being enforced in a discriminatory or arbitrary manner has no support in fact or law. (Doc. 167 at 33.) First, aside from their absurd claims that the entire state of Arizona is racist and motivated by anti-Hispanic bias, the Plaintiffs provide no facts to rebut the presumption that the Superintendent is not honestly enforcing the law with integrity. See Canatella, 404 F.3d at 1112. Plaintiffs merely accuse the Superintendent of racism for enforcing a law against a district that clearly violated that law. He has properly exercised his discretion and judgment in a manner that is neither discriminatory nor arbitrary, and Plaintiffs have failed to show otherwise. Grayned, 408 U.S. at 114, 92 S. Ct. at 2302 (acknowledging that the enforcement of a statute always requires the exercise of some degree of discretion and judgment). Second, even if the statutory terms were vague and susceptible to selective prosecution (which they are not here), a school district or charter school has the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process. See Flipside, 455 U.S. at 498; Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 49, 86 S. Ct. 1254, 1263 (1966) (deciding that there was no constitutional vagueness where the party challenging the law had access to the administrative agency for a ruling to clarify the issue). TUSD did just that. It resorted to the administrative process, where an independent and objective ALJ found that TUSDs MAS Program violated A.R.S. 15-112. (Doc. 162-9, 162-10.) While Plaintiffs acknowledge that state court decisions can be used to clarify the meaning of statutes, they argue that there are no state court interpretations of the challenged statute. (Doc. 167 at 23.) Plaintiffs fail to accept that an independent, objective ALJ found the statute sufficiently clear to find that the MAS Program violated the statute. (Doc. 162-9, 162-10.) That interpretation supports the Superintendents position that the law is not vague and that his enforcement of the law was not arbitrary or capricious.

22

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 23 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Because the MAS Program clearly violated the statute, Plaintiffs cannot complain that the statute is vague as applied to the MAS Program. Hunt, 638 F.3d at 710 (9th Cir. 2011). In this case, the ALJ interpreted the statute and applied it in an objective and reasonable manner, concluding that: A.R.S. 15-122 (F) permits the historical (objective) instruction of oppression that may, as a natural but unintended consequence, result in racial resentment or ethnic solidarity. However, teaching oppression objectively is quite different than actively presenting material in a biased, political, and emotionally charged manner, which is what occurred in MAS classes. Teaching in such a manner promotes social and political activism against the white people, promotes racial resentment, and advocates ethnic solidarity, instead of treating pupils as individuals. (Doc. 162-9.) In doing so, the ALJ found that the MAS classes clearly violated the law. And, as Plaintiffs failed to rebut or address, a plaintiff whose conduct clearly violates a statute cannot complain of its vagueness. Hunt, 638 F.3d at 710. Plaintiffs cannot refute the application of this rule of law to their case. As an example where the law clearly applies to this case, consider the portion of the law that prohibits courses designed primarily for members of a particular ethnic group. The man who actually designed the MAS Program clearly stated that the courses were designed primarily for students of a particular ethnic group: Q [by the reporter]: And, Mr. Romero, I want to begin with you. Why not just call the class Mexican studies or like you would have Mexican-American studies? Why did you put the word la raza in there, which as you know, to many people connotes a political movement, as opposed to an educational course? ROMERO: so that our students could recognize and connect to their indigenous side, just like the word dine for the Navajo translates to the people, like the word oodham for the Tohono Oodham translates to the people. The word yoeme for the Yoeme people translates to the people. It was an attempt to connect to our indigenous sides, as well as our Mexican side. (Doc. 68-2 at 4.) (emphasis added) If one of the purposes of this course is an attempt to connect with our indigenous sides, as well as our Mexican side, then, by nature, the course is designed primarily for pupils of a particular ethnic group, and the law cannot be considered vague as applied to the MAS

23

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 24 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Program. IV. CONCLUSION. For the foregoing reasons, it is respectfully requested that Plaintiffs motion for summary judgment be denied, and that Defendants cross motion for summary judgment be granted as to the claims pertaining to the First Amendment, and alleged vagueness. DATED this 15th day of March, 2012. THOMAS C. HORNE Attorney General

/s/ Thomas C. Horne_________________ Thomas C. Horne Kevin D. Ray Jinju Park Hurtado Assistant Attorneys General Attorney for Defendant John Huppenthal, Superintendent of Public Instruction, in his Official Capacity; and the State Board of Education and its individual members, in their official capacity as nominal parties

24

Case 4:10-cv-00623-AWT Document 194 Filed 03/16/12 Page 25 of 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 /s/ Phil Londen

#2626400v3

CERTIFICATE OF SERVICE I certify that I electronically transmitted the attached document to the Clerks Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following, if CM/ECF registrants, and mailed a copy of same to any non-registrants, this this 15th day of March, 2012 to: Richard M. Martinez, Esq. 307 South Convent Avenue Tucson, Arizona 85701 RMLaw@RichardMartinezLaw.com

25