Case 4:10-cv-00623-AWT Document 472 Filed 09/11/17 Page 1 of 13

1
Richard M. Martinez, No. 007763 Steven A. Reiss (admitted pro hac vice)
2 P.O. Box 43250 Luna N. Barrington (admitted pro hac vice)
Tucson, Arizona 85733 David Fitzmaurice (admitted pro hac vice)
3 Telephone: (502) 327-4797 WEIL GOTSHAL & MANGES LLP
4 richard@richardmartinezlaw.com 767 Fifth Avenue
New York, New York 10153
5 Robert S. Chang (admitted pro hac vice) Telephone: (212) 310-8000
Fred T. Korematsu Center for Law and Steven.Reiss@weil.com
6
Equality, Ronald A. Peterson Clinic Luna.Barrington@weil.com
7 Seattle University School of Law David.Fitzmaurice@weil.com
1215 East Columbia Street, Law Annex
8 Seattle, Washington 98122-4130 James W. Quinn (admitted pro hac vice)
9 Telephone: (206) 398-4025 JW Quinn ADR
changro@seattleu.edu 120 W. 45th Street, 38th Floor
10 New York, New York 10036
Telephone: (646) 766-0073
11 quinn@jwquinnlaw.com
Counsel for Plaintiffs
12
13 IN THE UNITED STATES DISTRICT COURT
14 FOR THE DISTRICT OF ARIZONA

15 NOAH GONZLEZ; JESS Case No. 4:10-cv-00623-AWT

GONZLEZ, his father and next friend; et
16 al., Honorable A. Wallace Tashima
17 Plaintiffs,
vs. Plaintiffs Remedy Brief
18
19 DIANE DOUGLAS, Superintendent of Oral Argument Requested
Public Instruction, in her Official Capacity;
20 et al.,
21 Defendants.
22
23
PRELIMINARY STATEMENT
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At the April 13, 2017 pretrial conference, the Court bifurcated proceedings,
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dividing the case into a liability phase and a remedies phase. After a two-week bench
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trial, the Court issued its Findings of Fact and Conclusions of Law and found Defendants
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 Case 4:10-cv-00623-AWT Document 472 Filed 09/11/17 Page 2 of 13

1 liable for violating both the First and Fourteenth Amendments. The Court entered
2 interim judgment as to liability in favor of Plaintiffs and directed the parties to submit
3 briefing on appropriate remedies.
4 Having successfully proven that the enactment and enforcement of ARS 15-1121
5 violated the First and Fourteenth Amendments, Plaintiffs request that the Court declare
6 the statute unconstitutional and permanently enjoin its enforcement. This relief will
7 enable TUSD to reinstitute its Mexican American Studies (MAS) program free from
8 any unconstitutional interference by Defendants and will also allow all school districts
9 and charter schools in Arizona to adopt ethnic studies programs, including MAS
10 programs. If TUSD chooses to reinstitute its MAS program, Plaintiffs will have the
11 opportunity to take MAS classes that have been unconstitutionally banned since 2011.
12 Plaintiffs, therefore, seek each of the following remedies to redress the violations
13 of their constitutional rights:
14 A declaration that ARS 15-112 is invalid because it was enacted in
violation of the First and Fourteenth Amendments.
15
16 A declaration that the past enforcement of ARS 15-112 by Defendants
including all prior orders, decisions, restrictions, terminations, threats, and
17 resolutions violated Plaintiffs First and Fourteenth Amendment rights.
18
A declaration that the continued enforcement of ARS 15-112 by
19 Defendants including Defendants present monitoring of TUSDs
Culturally Relevant Courses to ensure compliance with ARS 15-112
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violates Plaintiffs First and Fourteenth Amendment rights.
21
A permanent injunction prohibiting Defendants from enforcing,
22 investigating, monitoring, or reviewing any matter pursuant to ARS 15-
23 112 and prohibiting Defendants from taking any unconstitutional actions
against an ethnic studies program.
24
25 1
HB 2281 was codified as ARS 15-111 and 112. All references to the constitutionality
26 of ARS 15-112 apply equally to ARS 15-111, which the Court also found
unconstitutional.
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 Case 4:10-cv-00623-AWT Document 472 Filed 09/11/17 Page 3 of 13

1 An award of reasonable attorney fees and costs under 42 U.S.C. 1988(b)

and 28 U.S.C. 1821, in an amount to be determined after the entry of final
2 judgment.2
3 ARGUMENT
4 I. The Court Should Issue A Declaration Invalidating ARS 15-112
Because It Was Enacted Unconstitutionally
5
At the conclusion of the trial, the Court found that the wealth of evidence
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proved ARS 15-112 was enacted with a discriminatory purpose in violation of the First
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and Fourteenth Amendments. Op. 39, 2632. This evidence included John Huppenthals
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racially disparaging blog posts and non-credible testimony, Tom Hornes racially charged
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reasons for drafting the law, Mark Andersons emails with legislators, and Representative
10
Kavanaghs discriminatory comments, as well as the use of code words during the
11
legislative proceedings and other public discussion . . . to refer to Mexican Americans in
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a derogatory way, Op. at 30. The Court also found that the Legislatures decision to
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ignore existing legislation and enact special legislation to target a single educational
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program in use in a single school district in Arizona further demonstrated discriminatory
15
intent. Op. at 28. And because laws passed with a discriminatory purpose in violation of
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the Fourteenth Amendment are not motivated by pedagogical concerns, the Court found
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that the enactment of ARS 15-112 also violated the First Amendment. Op. at 41.
18
Pursuant to these findings, the Court entered the following interim judgment as to
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liability: The State of Arizona acted contrary to the Constitution of the United Sates in
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enacting Arizona Revised Statute 15-112 and 15-111. Interim J. at 2.
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Where a law is discriminatorily enacted, the court must invalidate the law by
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declaring it unconstitutional. See N. Carolina State Conference of NAACP v. McCrory,
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831 F.3d 204, 240 (4th Cir. 2016) (laws passed with discriminatory intent inflict a
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broader injury and cannot stand); see also McCrory, 831 F.3d at 238 (When
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26 2
Since their first complaint, Plaintiffs have requested declaratory and injunctive relief,
along with an award of reasonable attorney fees and costs. See Docs. 1, 339.
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1 discriminatory intent impermissibly motivates the passage of a law, a court may remedy
2 the injury the impact of the legislation by invalidating the law.); see also City of
3 Richmond, Virginia v. United States, 422 U.S. 358, 378 (1975) (official actions that are
4 racially discriminatory have no legitimacy at all under our Constitution); cf. Veasey v.
5 Abbott, 830 F.3d 216, 269 (5th Cir. 2016) (noting that the remedy for unconstitutional
6 enactment is potentially broader than the remedy for unconstitutional enforcement). As
7 a remedy, therefore, Plaintiffs seek a declaration invalidating ARS 15-112 because the
8 Court has found that it was enacted in violation of the First and Fourteenth Amendments.
9 See 28 U.S.C. 2201.3
10 (i) The Court Can Enter The Requested Declaratory Judgment Against The
Existing Defendants
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While the Court expressed an initial doubt about whether such a remedy may be
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entered in a case where neither the State of Arizona, the Governor, nor the Legislature are
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a party, the Court can nevertheless enter this declaratory judgment based on the existing
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record and existing parties.
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This Court does not need the addition of the State of Arizona, the Governor, or the
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Legislature as parties to declare that ARS 15-112 was unconstitutionally enacted.
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Indeed, in Hunter v. Underwood the seminal case on discriminatory enactment the
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plaintiff did not sue the State of Alabama, the Governor, or the Legislature and instead
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sued only the enforcers of the challenged Alabama law: the registrars of Montgomery and
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The entry of a declaratory judgment is appropriate (1) when the judgment will serve a
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useful purpose in clarifying and settling the legal relations in issue, and (2) when it will
23 terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to
the proceeding. McGrawEdison Co. v. Preformed Line Prods. Co., 362 F.2d 339, 342
24 (9th Cir. 1966) (quotation marks omitted). Because the requested declaratory judgment
25 invalidates a state law and declares it unconstitutional, it easily meets the standards for
declaratory relief. See Doe v. Gallinot, 657 F.2d 1017, 1025 (9th Cir. 1981) ([T]his case
26 seems an entirely appropriate one in which to exercise the discretion to render a
declaratory judgment on the constitutionality of the challenged statutory provisions.).
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1 Jefferson Counties. See Hunter v. Underwood, 471 U.S. 222 (1985). The Supreme Court
2 nevertheless affirmed the Eleventh Circuits holding that the state provision was
3 unconstitutionally enacted and, therefore, lack[ed] legal effect. Hunter, 471 U.S. at
4 233; Underwood v. Hunter, 730 F.2d 614, 621 (11th Cir. 1984). The Ninth Circuit ruled
5 likewise in Doe v. Gallinot, where the plaintiff sued only the Director of the State
6 Department of Mental Health, the enforcer of the challenged state law. After concluding
7 that the state law violated the Fourteenth Amendment, the Ninth Circuit affirmed the
8 entry of a declaratory judgment invalidating the law, even though neither the State of
9 California, the Governor, nor the Legislature were parties. See Doe, 657 F.2d at 1025
10 ([T]his case seems an entirely appropriate one in which to exercise the discretion to
11 render a declaratory judgment on the constitutionality of the challenged statutory
12 provisions.).
13 The result should be no different here. Like the plaintiffs in Hunter and Doe,
14 Plaintiffs sued only the enforcers of ARS 15-112 the Superintendent of Education
15 and the State Board of Education and did not sue the State of Arizona, the Governor,
16 or the Legislature. Their absence should not prevent the Court from declaring that a law
17 enacted for a discriminatory purpose is unconstitutional. Indeed, their absence did not
18 prevent this Court from previously entering a declaratory judgment that ARS 15-
19 112(A)(3) was unconstitutional, a judgment affirmed by the Ninth Circuit. Accordingly,
20 the Court should issue a declaration invaliding ARS 15-112 because it was enacted in
21 violation of the First and Fourteenth Amendments.
22 (ii) If Additional Parties Are Necessary, Plaintiffs Request Leave To Move
To Amend Their Pleadings Under Rule 15(b) To Add Additional
23 Defendants
24 If the Court determines that additional parties are necessary to declare that ARS
25 15-112 was unconstitutionally enacted, Plaintiffs request leave to move to amend their
26 pleadings under Rule 15(b) to add both the State of Arizona and Governor of Arizona as
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1 defendants. See Fed. R. Civ. P. 15(b)(2) (A party may move at any time, even after
2 judgment to amend the pleadings to conform them to the evidence and to raise an
3 unpleaded issue.).
4 As the Court has noted, extensive evidence was submitted during the trial about
5 the discriminatory motivations in enacting ARS 15-112. To conform this evidence to
6 the issues tried by the Court and enable the Court to issue full relief, the Court can permit
7 Plaintiffs to add these additional parties, if necessary. See Consol. Data Terminals v.
8 Applied Digital Data Sys., Inc., 708 F.2d 385, 396 (9th Cir. 1983) ([T]he purpose of
9 pleading amendments under the second sentence of Federal Rule 15(b) is to align the
10 pleadings to conform to the issues actually tried. (quotation marks omitted)). No
11 prejudice can result from this amendment because the same factual evidence of the
12 unconstitutional enactment of ARS 15-112 applies equally to the State of Arizona and
13 the Governor of Arizona. Indeed, the Arizona Attorney General represented the named
14 defendants throughout the entire case. See Fed. R. Civ. P. 15(c)(1)(C) (adding a new
15 party is appropriate if the new party will not be prejudiced and if the new party knew
16 or should have known the action would have been brought against it); Krupski v. Costa
17 Crociere S. p. A., 560 U.S. 538, 538 (2010) (Rule 15(c)(1)(C) depends on what the party
18 to be added knew or should have known, not on the amending partys knowledge or its
19 timeliness in seeking to amend the pleading.).4
20 Accordingly, given that (1) the unconstitutional enactment of ARS 15-112 was
21 an issue clearly tried by the Court; (2) the same facts would be implicated with respect to
22 the State of Arizona and the Governor; and (3) the Arizona Attorney General defended
23 against this action, the Court should grant Plaintiffs leave to move to amend their
24 pleadings and add these new Defendants, should the Court determine that their presence
25
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At no point did Defendants ever argue that the State of Arizona or the Governor were
necessary parties under Rule 19.
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1 as parties is necessary to afford Plaintiffs full relief.

2 II. The Court Should Declare That Defendants Enforcement Of ARS
15-112 Is Unconstitutional
3
In addition to finding that ARS 15-112 was enacted with discriminatory intent,
4
the Court also found that Defendants had discriminatorily enforced ARS 15-112 in
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violation of the First and Fourteenth Amendments. Specifically, the Court considered the
6
direct evidence of racial discrimination found in Huppenthals blog comments and in
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Defendants decision to selectively enforce ARS 15-112 against only the MAS
8
program. Op. at 32. The Court also considered the overwhelming circumstantial evidence
9
showing Defendants animus, including Hornes one-sided investigation into the MAS
10
program, the results of which boarder[ed] on the illogical; Defendants enforcement of
11
ARS 15-112 before the statute was even in effect; Huppenthals rejection of the
12
Cambium audit because it did not conform to his preconceptions about the MAS
13
program; the fact that Defendants subsequent investigation concluded that the MAS
14
program was in violation before the investigation even began; Defendants assumption
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that all materials were being taught literally to MAS students, which was itself an act of
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negative stereotyping; and the fact that Defendants terminated an academically
17
successful program. Op. at 3238. And because the enforcement of ARS 15-112 was
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motivated by discrimination rather than genuine pedagogical concerns, the Court found
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that the enforcement of ARS 15-112 also violated the First Amendment. Op. at 41.
20
Based on these findings, the Court entered the following interim judgment as to
21
liability:
22 Defendant DIANE DOUGLAS, in her official capacity as
23 Superintendent of Public Instruction of the State of Arizona,
and her predecessors in office (hereinafter the
24 Superintendent), acted contrary to the Constitution of the
United States and violated Plaintiff students rights under the
25
First and Fourteenth Amendments to the Constitution when
26 the Superintendent found the Tucson Unified School District
(TUSD) in violation of Arizona Revised Statute 15-112
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and caused the TUSD to shut down the Mexican American

1
Studies (MAS) Program by assessing a penalty of 10
2 percent of TUSDs state funding if the MAS Program were
not eliminated.
3
Interim J. at 12.
4
To remedy Defendants unconstitutional actions, Plaintiffs request that the Court
5
enter this same order as a final declaratory judgment against Defendants, and void all
6
prior enforcement actions, orders, decisions, restrictions, and resolutions. Plaintiffs also
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request that the Court extend this declaratory judgment to cover Defendants continued
8
enforcement of ARS 15-112 and declare that Defendants monitoring of TUSD to
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ensure compliance with ARS 15-112 is unconstitutional. See 28 U.S.C. 2201.5
10
III. The Court Should Permanently Enjoin Defendants From Enforcing
11 ARS 15-112
12 Because the Court has ruled that ARS 15-112 was unconstitutionally enacted
13 and enforced, Plaintiffs request, in addition to declaratory relief, that the Court
14 permanently enjoin Defendants from enforcing ARS 15-112. See 28 U.S.C. 2202
15 (empowering courts to grant [f]urther necessary or proper relief based on a declaratory
16 judgment or decree). As the Ninth Circuit has ruled, a permanent injunction alongside a
17 declaratory judgment is generally a proper remedy to prohibit the enforcement of an
18 unconstitutional law:
19 Having exercised that discretion, and having declared the
statutory scheme unconstitutional on its face, the district court
20 was empowered under 28 U.S.C. s 2202 to grant (f)urther
21 necessary or proper relief to effectuate the judgment. The
challenged provisions were not unconstitutional as to Doe
22 alone, but as to any to whom they might be applied. Under
23
5
This relief also satisfies the requirements for a declaratory judgment. See McGraw-
24 Edison, 362 F.2d at 342. The requested declaratory judgment clarifies both the scope of
25 the First and Fourteenth Amendments and their application to the enforcement of ARS
15-112. The requested declaratory judgment also clarifies that TUSD and any other
26 school district in Arizona can teach MAS classes and that students can take these
classes free from any unconstitutional interference.
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the circumstances, it was not an abuse of discretion for the

1
district court to enjoin the defendants from applying them.
2
Doe, 657 F.2d at 1025; see Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908,
3
937 (9th Cir. 2004) (remanding the case for entry of the appropriate declaratory relief
4
and injunction against enforcement of the statute); see also Washington v. Seattle Sch.
5
Dist. No. 1, 458 U.S. 457, 466, 471, 487 (1982) (affirming the permanent injunction of a
6
state measure because it was effectively drawn for racial purposes in violation of the
7
Fourteenth Amendment).
8
In addition to the typical requirements for a permanent injunction showing a
9
likelihood of substantial and immediate irreparable injury and the inadequacy of
10
remedies at law, American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045,
11
106667 (9th Cir. 1995) (quotation marks omitted) when considering whether a
12
permanent injunction is appropriate against a state government entity, the Court must
13
make sure that the remedy protects the plaintiffs federal constitutional [] rights but does
14
not require more of state officials than is necessary to assure their compliance with
15
federal law. Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995). In other words, the Court
16 must determine that Defendants conduct violates federal constitutional law and that the
17 scope of the injunction is no broader than necessary to provide complete relief to the
18 named plaintiffs. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1496 (9th
19 Cir. 1996) (citation omitted).
20
Here, Plaintiffs seek a targeted permanent injunction prohibiting Defendants from
21
enforcing, investigating, monitoring, or reviewing any matter pursuant to ARS 15-112
22
and prohibiting Defendants from taking any similar unconstitutional actions against any
23 ethnic studies program. This injunction prohibits the sole enforcers of ARS 15-112
24 the Superintendent of Education and the State Board of Education from enforcing a
25
now-unconstitutional law. See The Womens Res. Network v. Gourley, 305 F. Supp. 2d
26 1145, 1155 (E.D. Cal. 2004) (permanently enjoining the California Department of Motor
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1 Vehicles from enforcing an unconstitutional law). This injunction is necessary to bring an

2 end to the unconstitutional restrictions placed on the MAS program by ARS 15-112 and
3 will afford Plaintiffs the opportunity to take MAS classes, should TUSD reinstate its
4 MAS program. The injunction places one simple restriction on Defendants: refrain from
5 enforcing a now-unconstitutional law. Given the long list of unconstitutional actions
6 taken by Defendants to terminate the MAS program including the enactment of a
7 special purpose statute, the enforcement of the statute before it even took effect, and the
8 continued monitoring of TUSD a permanent injunction from further enforcing ARS
9 15-112 is a necessary and proportionate remedy to meaningfully redress the violation of
10 Plaintiffs rights and guard against any further violations.6
11 IV. The Court Should Award Plaintiffs Attorney Fees And Costs
12 Under the Civil Rights Attorneys Fees Award Act, the prevailing party is
13 entitled to an award of reasonable attorney fees and costs. 42 U.S.C. 1988(b). Having
14 prevailed on every claim at trial, Plaintiffs are entitled to an award of reasonable attorney
15 fees and costs from Defendants.7 See Lefemine v. Wideman, 568 U.S. 1, 4 (2012) (per
16 curium) (A plaintiff prevails, we have held, when actual relief on the merits of his claim
17 materially alters the legal relationship between the parties by modifying the defendants
18 behavior in a way that directly benefits the plaintiff. And we have repeatedly held that an
19
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Indeed, the Court contemplated this relief in its October 28, 2015 order permitting
20 Plaintiffs to amend their complaint, recognizing that there was a substantial likelihood
21 that enjoining further enforcement of 15-112 would end the complained-of
discrimination . . . [and] leave the District free to once again offer curricula and materials
22 representing the ideological viewpoint currently forbidden under 15-112. Doc. 272, at
23.
23
7
Prior to trial, Plaintiffs also prevailed in their claim that ARS 15-112(A)(3) was
24 unconstitutionally overbroad, a determination that was affirmed by the Ninth Circuit.
25 Cabrales v. Cty. of Los Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991) ([P]laintiffs are to
be compensated for attorneys fees incurred for services that contribute to the ultimate
26 victory in the lawsuit. Thus, even if a specific claim fails, the time spent on that claim
may be compensable, in full or in part, if it contributes to the success of other claims.).
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1 injunction or declaratory judgment, like a damages award, will usually satisfy that test.
2 (internal quotation marks and citation omitted)); see also 28 U.S.C. 1821 (awarding
3 other costs associated with trials).
4 Accordingly, Plaintiffs request that the Court enter judgment awarding Plaintiff
5 reasonable attorney fees and costs, the precise amount of which will be determined
6 after the entry of judgment. See Diaz v. Brewer, No. 09 Civ. 2402 (JWS), 2015 WL
7 3555282, at *1 (D. Ariz. June 5, 2015) (adjudicating a motion for attorney fees and costs
8 made after the entry of judgment); see also L. R. Civ. 54.2 (providing that, unless
9 otherwise ordered, motions for attorney fees must be filed within 14 days of the final
10 judgment).
11 CONCLUSION
12 For the reasons above, Plaintiffs request that the Court issue the following relief:
13 (1) a declaratory judgment invalidating ARS 15-112 as unconstitutionally enacted; (2) a
14 declaratory judgment that Defendants unconstitutionally enforced, and continue to
15 enforce, ARS 15-112; (3) a permanent injunction prohibiting Defendants from
16 enforcing ARS 15-112; and (4) an award of reasonable attorney fees and costs, in an
17 amount to be determined after final judgment is entered.
18
Dated September 11, 2017 /s/ Steven A. Reiss
19
20 Steven A. Reiss
Luna N. Barrington
21 David Fitzmaurice
22 WEIL GOTSHAL & MANGES, LLP

23 James W. Quinn
JW QUINN ADR
24
25 Richard M. Martinez, Esq.
26 Robert S. Chang, Esq.
27 Ronald A. Peterson Clinic
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Seattle University School of Law

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Counsel for Plaintiffs
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1 Certificate of Service
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I hereby certify that on September 11, 2017, I electronically filed the above
3 Remedy Brief via ECF.
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5 /s/ David Fitzmaurice
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