Tom Horne vs MAS students

8/2/2019 Tom Horne vs MAS students

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THOMAS C. HORNEAttorney 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: [email protected]

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.

Case No. CV-10-623-TUC-AWT

REPLY IN SUPPORT OF

SUPERINTENDENTS CROSS-MOTION FOR SUMMARY

JUDGMENT

Honorable A. Wallace Tashima

I. SUMMARY.

A. As a Matter of Law, Students Have No First Amendment Rights to Dictate

Curriculum to the Schools.

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 1 of 25


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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 notprevent 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 ofanything. 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 UnitedStates 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

1See Affidavit of Kathy Hrabluk 9.



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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 publicmight 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 tosummary 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

2Wherever 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.



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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 ourindigenous 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



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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. 15-

231.01. 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 themeaning 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

3Plaintiffs 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 on-

site 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.



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applied.

II. FACTS APPLICABLE TO THIS CROSS MOTION.

A. Importance to the Cross Motion of the Facts Presented Here.

Plaintiffs citePeoples 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

spiritandpurpose. (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

4Other examples can be found in Plaintiffs Reply Doc. 164 at 33, n.133, and in Doc. 91 at 34.

5As 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.)



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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 ethnicsolidarity 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.



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(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 anti-intellectual 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.)



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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 ateacher 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



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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 criticaleducator 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



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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 theirpedagogy 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, Gonzalezused 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,

6Freire describes himself as a Marxist.



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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



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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 ofour 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: Mexican-

Americans, Chicanos, Latinos (id. at 271) who were always the oppressed group (id.).

The assignments the MAS teachers gave their students were not academicallybeneficial 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 thisenvironment 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



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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 inyour 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 make-

believe 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 adoptedby 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



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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 Educationfound 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 theminds 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



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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, andemotionally 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 inEvans-



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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 validstatutory 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 in-

class 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);



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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 ofbest 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) (citingRosenberger 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 fromEnglish 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,



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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 cannotshow 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 Project578 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



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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 theconduct 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

7

No case exists to support Plaintiffs claim that a statute mustdefine 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.



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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 showotherwise. 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 foundthe 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.



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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



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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



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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, thisthis 15th day of March, 2012 to:

Richard M. Martinez, Esq.

307 South Convent Avenue

Tucson, Arizona 85701

[email protected]

/s/ Phil Londen#2626400v3


Tom Horne vs MAS students

Documents

Transcript of Tom Horne vs MAS students