Arizona The Ruling

by Rodolfo F. Acuña

U.S. Circuit Judge A. Wallace Tashima has made his decision to uphold disparate treatment of Mexican Americans, and the constitutionality of HB 2281. The purpose of this law was to destroy Tucson Unified School District’s Mexican American Studies Program.  In doing so, Tashima returned us to the times of Joseph McCarty.  

The Arizona law broadly banned courses that promote the overthrow of the U.S. government, foster racial resentment, were designed for students of a particular ethnic group or that advocated ethnic solidarity.

The penalty if Tucson did not comply was that the district would lose 10 percent of its annual funding -- some $14 million over a fiscal year.

Tashima ruled that the plaintiffs “failed to show the law was too vague, broad or discriminatory, or that it violated students’ first amendment rights.” On the positive side, he held that courses made-to-serve students of a particular ethnic group were not unconstitutional, which seems to imply that it is alright to ban ethnic studies programs.

The ruling raised more questions than it answered. The judge’s legal reasoning and wording was not consistent with his previous decisions, and it left me with the feeling that it had been written by law clerks and that the decision was not properly vetted by Tashima who has been more precise in previous rulings. A survivor of the Japanese internment camps, he had been expected to be sensitive to the rampant racism in Arizona.

Tashima noted that Attorney General Tom Horne’s anti-Mexican American Studies ardor bordered on discriminatory conduct, saying that Horne’s “single-minded focus on terminating the MAS (Mexican-American Studies) program” raised concerns.

Then Tashima engaged in mental gymnastics: "Although some aspects of the record may be viewed to spark suspicion that the Latino population has been improperly targeted, on the whole, the evidence indicates that Defendants targeted the MAS program, not Latino students, teachers or community members who participated in the program." This conclusion is mind boggling.

This wrongheaded logic would condone the bombing of a village as long as the villagers were not targeted.  

The truth be told, HB 2281 targeted Mexican students in particular restricting their right to learn about the history and culture of their parents. It deprived Anglo-Americans and others of the right to learn a broader history that includes Mexican Americans and other minorities.     

The state also sanctioned the banning of books because Attorney General Horne and Superintendent John Huppenthal did not approve of them. It is clear from the record that the reason for banning the books was political and had nothing to do with fact. It is also clear that reputable education evaluators found the books were not unpatriotic, did not promote racial divisions or that they were written for a particular ethnic group. The fact that they are about Mexican Americans or other minorities does not prove that they fall within the objections of the defendants.

In sum, the court held “a student’s First Amendment rights are infringed when books that have been determined by the school district to have legitimate educational value are removed from a mandatory reading list because of threats of damages, lawsuits, or other forms of retaliation.” And may I add the whim of public elected officials.

Many of the books in Tucson were banned because they were written by Native and Mexican American authors. They have not been proven to distort history.

Tashima’s state authority was not that of a professional educator, not that of a legal scholar, but an administrative Law Judge who listens to liquor license and insurance claims. The ALJ was someone that the superintendent of instruction for all intents and purposes dragged off the street, and to make things worse was appointed by the state.

Tashima repeats that it would have been illegal if HB 2281 or the banning of the books would have been motivated by a discriminatory purpose. He admits that Tom Horne made repeated attempts to ban MAS in TUSD; that Huppenthal promised to “Stop La Raza.” Despite this Tashima ignores discriminatory purpose. He accepts the argument that people are rounded up and put into internment camps for their own protection.

Disparate treatment in job discrimination is when an individual of a protected group is singled out and treated “less favorably than others similarly situated on the basis of an impermissible criterion under Title VII.” When proven that the employer's actions were motivated by discriminatory intent it is a violation. Women cannot be treated differently than men and so on.

The preponderance of evidence shows that Horne has singled out Mexican Americans for the enforcement of 2281. Despite this Tashima has ruled that he believes what the ALJ found and that is okay to enforce the 2281 against Mexican Americans and not whites, African-Americans, Asian Americans or Native Americans.

The ruling concerns most civil rights minded people. It says that the First Amendment does not protect student or teacher rights to receive information restricting access and that political officials can forbid the classroom use of a book based solely on “ideological content.” The ruling legalizes censorship. None of the books banned have been reviewed by experts in the field or publicly vetted.

The Tashima ruling is frightening because there is no restraint on the power of the states, which was what the 14^th Amendment was all about. Taken to its logical conclusion it nullifies Brown v. the Board of Education.

Tashima improperly grants the State absolute discretion in devising its curriculum. This is frightening in a state like Arizona where the Koch brothers, ALEC and other special interests have seized control of government and are benefiting from the privatization of education, the prisons and public institutions. Arizona is a state where elected officials are attempting to nullify the U.S. Constitution.

What bothers me is that Tashima’s law clerks were not even clever in their reasoning. They cite the Plaintiffs’ use of the verb “promote” as impermissibly broadening the statute. Tashima’s clerks cite as their authority Webster’s Third New Int’l Dictionary 1815 (2002). I would have expected this from a freshman but not a legal scholar.

The bottom line is that it all comes down to Supreme Court Justice Sonia Sotomayor’s remark that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

This statement pertains to Tashima. I would have hoped that a judge with his life experiences would have examined the context in which Horne, Huppenthal and the gaggle white politicos made the decisions to ban Mexican American studies and ban the books. The political motivations of the Arizona Attorney General and the state superintendent of schools are obvious – just read their public statements.

Reasonable people can also raise other questions. Does American education, for example, promote racial solidarity among whites? A reading of the history of American Education shows that public education was and is designed for white students. The content, the books and its standards are to promote Americanization. Neither Mexican American Studies nor any other  other ethnic studies program has those objectives.  They are taught within the context of the American experience.

I will not speak to Tashima’s claim that the facial vagueness of the plaintiffs’ challenge must fail for many of the same reasons.  Again, I go back to Sotomayor’s statement that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” I would have expected someone with Tashima’s life experiences to have understood what is happening in Arizona. However, I cannot speak for his clerks.

What did Horne mean when he vowed that he would eliminate Mexican American Studies? When he made the statement that Mexican American Studies was trying to retake the Southwest? What did Tashima make of the fact that Arizona has avoided a federal court order to desegregate since the 1970s?  What did he think about Huppenthal’s dismissal of the $112,000 Cambium study which refuted all of his claims about Mexican American studies? Does this not speak to motivation?

Look at the public record and consider the assassination of 9 year old Brisenia Flores in 2009. Does this not speak to discrimination?

As I have said on numerous occasions this culture war is being directed against Mexican Americans and the state and federal courts don’t care. I entered this case, not because I was fighting for individuals, but because of the 2281. Tashima has opened the door to a singling out of brown people throughout this nation. The ruling is a threat that rises above our petty differences and jealousies.