Escolar Documentos
Profissional Documentos
Cultura Documentos
FOR PUBLICATION
Nos. 13-15657
13-15760
D.C. No.
4:10-cv-00623AWT
OPINION
The Honorable A. Wallace Tashima, Circuit Judge for the U.S. Court
of Appeals for the Ninth Circuit, sitting by designation.
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ARCE V. DOUGLAS
Before: John T. Noonan and Richard R. Clifton, Circuit
Judges, and Jed S. Rakoff, District Judge.**
Opinion by Judge Rakoff;
Partial Concurrence and Partial Dissent by Judge Clifton
SUMMARY***
Civil Rights
The Honorable Jed S. Rakoff, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
***
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COUNSEL
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OPINION
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Discussion
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Plaintiffs state that if they had been given the opportunity to brief the
equal protection claims under a summary judgment analysis, they would
have introduced emails from legislators evincing animus against Mexican
Americans while advocating for this legislation. Though such material
would likely be highly relevant to the Arlington Heights analysis, Vill. of
Arlington Heights, 429 U.S. at 268, that material is not before us.
Plaintiffs also assert that they would have provided the district court with
evidence of the historical background of 15-112, specifically with regard
to the relationship between the States anti-immigration efforts and the
passage of this statute. They assert that this law and the controversial antiimmigration law, S.B. 1070, moved through the Arizona legislature at the
same time and were passed in a climate charged with animus against
Mexicans and Mexican Americans. Again, while all this reinforces our
determination that the district court erroneously granted summary
judgment sua sponte on this claim, we do not consider it in our further
conclusion that summary judgment on this claim was, in any case,
wrongly granted to defendants.
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not faced with the issue presented here, which involves the
extent to which a state superintendent can decide on the basis
of his own evaluation to remove from a students purview
certain material otherwise approved by the local school
board. See id. at 1029.
Defendants argue that we should apply our holding in
Downs v. L.A. Unified School District, 228 F.3d 1003 (9th
Cir. 2000), and the Fifth Circuits holding in Chiras v. Miller,
432 F.3d 606 (5th Cir. 2005), both of which restricted speech
in a school setting because the schools actions were
considered government speech and were therefore immune
from a forum or viewpoint-discrimination analysis. See
Downs, 228 F.3d at 101617; Chiras, 432 F.3d at 61217.
However, neither of these holdings involved a students First
Amendment rights, and are accordingly inapplicable to the
instant case. In Downs, we held that material that a teacher
posted on a school bulletin board was government speech,
and therefore the teacher had no First Amendment right to
challenge regulation of that material. Downs, 228 F.3d at
1005, 1011. In Chiras, the Fifth Circuit applied a government
speech analysis to an authors claim that the states rejection
of his textbook for inclusion in the classroom violated his
First Amendment rights. Chiras, 432 F.3d at 607, 618. In that
context, Chiras held that the selection of textbooks and
development of curriculum was government speech and did
not create a public forum in which the author could assert a
First Amendment right. Id. at 618. However, the court
engaged in an entirely separate analysis (discussed below)
with regard to the other plaintiff, a high school student. Id. at
618 (The conclusion that no forum exists in this case does
not necessarily preclude the students First Amendment
claim.). Accordingly, we find that the holdings in Downs and
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Defendants argue, seemingly for the first time on appeal, that they are
not responsible for the elimination of the MAS curriculum and its
materials, but rather that TUSD is. Therefore, they assert, they should not
be liable for curricular decisions of the school district that may have
infringed on plaintiffs First Amendment rights. This characterization of
the circumstances surrounding the removal of material is artificial and
ignores completely the fact that former Superintendent Huppenthal
directly caused, indeed ordered, TUSD to remove MAS-related books
from its curriculum as part of his finding TUSD was not in compliance
with 15-112. Specifically, the State not only imposed a fine of ten
percent of state funding until TUSD came into compliance, but also
required proof that all MAS instructional material had been removed from
TUSD classrooms. Former Superintendent Huppenthal was personally
responsible for monitoring compliance with this demand. Therefore, even
if defendants had not waived their argument by failing to raise it below,
we find there is no genuine dispute that the defendants are responsible for
the elimination of the program and removal of material from the
classroom and are accordingly subject to plaintiffs First Amendment
claims.
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We would share plaintiffs concerns in the event the statute were used
to censor materials that individually, and incidentally, could cause feelings
of resentment but that are placed within the context of an entire course or
curriculum in a manner that creates an unbiased presentation of material.
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As the issue of standing here is a question of law, not fact, we will
assess whether we have jurisdiction rather than remanding the question to
the district court. Cf. Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 10910 (1998) (assessing for itself whether a plaintiff had
standing before engaging in the merits of the lower courts decision).
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This Court has filed and entered the attached judgment in your case.
Fed. R. App. P. 36. Please note the filed date on the attached
decision because all of the dates described below run from that date,
not from the date you receive this notice.
The mandate will issue 7 days after the expiration of the time for
filing a petition for rehearing or 7 days from the denial of a petition
for rehearing, unless the Court directs otherwise. To file a motion to
stay the mandate, file it electronically via the appellate ECF system
or, if you are a pro se litigant or an attorney with an exemption from
using appellate ECF, file one original motion on paper.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(1)
A.
B.
A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or
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(2)
See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the
due date).
(3)
Statement of Counsel
(4)
Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
The petition shall not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text.
An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.
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The Bill of Costs must be filed within 14 days after entry of judgment.
Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees
applications.
All relevant forms are available on our website at www.ca9.uscourts.gov under Forms
or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari
If there are any errors in a published opinion, please send a letter in writing
within 10 days to:
Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 551640526 (Attn: Jean Green, Senior Publications Coordinator);
and electronically file a copy of the letter via the appellate ECF system by using
File Correspondence to Court, or if you are an attorney exempted from using
the appellate ECF system, mail the Court one copy of the letter.
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Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)
v.
The Clerk is requested to tax the following costs against:
Cost Taxable
under FRAP 39,
28 U.S.C. 1920,
9th Cir. R. 39-1
REQUESTED
(Each Column Must Be Completed)
No. of
Docs.
Pages per
Doc.
TOTAL
COST
Cost per
Page*
ALLOWED
(To Be Completed by the Clerk)
No. of
Docs.
Cost per
Page*
Pages per
Doc.
TOTAL
COST
Excerpt of Record
Opening Brief
Answering Brief
Reply Brief
Other**
TOTAL: $
TOTAL: $
* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed
pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be
considered.
Attorneys' fees cannot be requested on this form.
Continue to next page
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Form 10. Bill of Costs - Continued
I,
, swear under penalty of perjury that the services for which costs are taxed
were actually and necessarily performed, and that the requested costs were actually expended as listed.
Signature
("s/" plus attorney's name if submitted electronically)
Date
Name of Counsel:
Attorney for:
, Deputy Clerk