Administrative Law Judge Finds TUSD’s Mexican American Studies Program Illegal Under Arizona’s Ethnic Studies Law, Questions Remain About How Broadly the Law Should Be Interpreted

In the Fall 2011 Issue of the Arizona Law Review, I wrote1 that A.R.S. section 15-112, Arizona’s highly controversial “ethnic studies law,” would be unlikely to stop schools in the Tucson Unified School District (“TUSD”) from teaching Mexican American Studies courses. Since then, an administrative law judge has upheld the Arizona Superintendent of Public Instruction’s determination that these courses violate the law, and TUSD shuttered the Mexican American Studies program. The judge’s decision is the first to interpret the ethnic studies law, but it still leaves Arizona educators in the dark about what precisely the law prohibits.

The December 27, 2011 decision by Judge Lewis D. Kowal agreed with Superintendent John Huppenthal’s conclusion that Tucson’s Mexican American Studies courses advocate ethnic solidarity, promote resentment toward a race or class of people, and were designed primarily for pupils of a particular ethnic group. The administrative law judge based his determination on testimony from several teachers, parents, administrators, and professors of education.

Despite the Department of Education’s failure to actually observe any Mexican American Studies courses, the administrative law judge determined that a true picture of the courses’ teachings could be pieced together from written course curricula, teachers’ lesson plans, and students’ work product. He agreed with the Superintendent that the $100,000 study commissioned by the Department of Education, which failed to find any violation of A.R.S. section 15-112, was unreliable because the auditors observed too few classes and teachers may have had advance warning of the in-class visits. Thus, the decision affirms the Superintendent’s ability to find courses in violation of the law without ever observing how teachers actually present material to students in the classroom.

This conclusion is troubling because it blurs the line between the assertions of teachers and the assertions of authors. Teachers who themselves do not promote ethnic solidarity or resentment based on race must now think twice before they introduce assertions by political figures or influential authors who make controversial statements about race and ethnicity. A teacher may, for example, introduce a speech by influential labor activist José Angel Gutiérrez, where he exclaimed that Chicanos should “kill the gringo.”2 Even if a teacher specifically disclaims this violent rhetoric as misguided, the Superintendent may apparently see the speech on the course syllabus and conclude that the entire course violates the ethnic studies ban.

Significantly, the judge offered the first interpretation of section 15-112(F), the exception to the ethnic studies law that clarifies that it should not be read to restrict or prohibit “the discussion of controversial aspects of history” or “the historical oppression of a particular group of people based on ethnicity, race, or class.” I have previously argued 3 that this exception implicitly means students may learn about any and all past oppression of their ethnic group even if, as a result, those students feel ethnic solidarity or resentment towards a race or class of people. Under this interpretation of section 15-112(F), anecdotal evidence of students feeling ethnic solidarity after learning about historical events will not be enough to prove that any course violates the law.

TUSD presented this argument to the administrative law judge. The judge seemed to agree with this proposition, but applied the section 15-112(F) exception somewhat differently. The administrative law judge stated that the exception permits the historical (objective) instruction of oppression that may, as a natural but unintended consequence, result in racial resentment or ethnic solidarity … [but may not] actively present[] material in a biased, political, and emotionally charged manner, which is what occurred in Mexican American Studies classes.”4 Thus, according to the administrative law judge, promoting social or political activism based on race is prohibited.

This interpretation of section 15-112(F) is logical because promoting activism encourages future action, and section 15-112(F) only exempts teaching about historical events. But the judge’s application of this standard seems to ignore the fine distinctions the law actually requires.

As evidence that the courses promote resentment and ethnic solidarity, for example, the judge cites a lesson plan about the Treaty of Guadalupe Hidalgo. The lesson plan states: “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.” This passage, standing alone, is merely a recitation of historical events and should be exempt under section 15-112(F). The judge then found evidence that teachers instruct students that the Treaty should be used as a legal precedent to support some form of restitution for the descendants of Mexicans. This teaching is not exempt under section 15-112(F) because it suggests future political action. Finally, the judge determined that a student’s essay linking Arizona’s controversial immigration law, Senate Bill 1070, to the Treaty of Guadalupe was evidence that the course promoted resentment and ethnic solidarity. Yet this contravenes the express language of section 15-112(F), which allows for “discussion of controversial aspects of history.”

Such a determination is also at odds with the judge’s own interpretation of section 15-112(F), which permits instruction of oppression “that may, as a natural but unintended consequence, result in racial resentment or ethnic solidarity.” The judge explored none of these fine distinctions in his opinion; rather he invalidated the entire Mexican American Studies program based on the generalization that “there is no way to use the materials without being in violation of the law.”

Furthermore, the suggestion that all teaching must be “objective” or not “biased” presents an impossibly unworkable framework for educators. Every summary of historical events is written from the perspective of its author, thus every work has a “bias.” Maybe this means that every opinion presented in a textbook or a lecture must be counter-balanced by an opposing opinion. Consider a textbook that suggests the United States adopted the 19th Amendment because women are every bit as capable of making informed political decisions as men. Must an Arizona teacher present the corresponding opinion of the Saudi Arabian government explaining why women should not vote? Or maybe the “objective” standard means that teachers simply may not present any opinions about historical events, thus reducing the study of history to the rote memorization of dates, wars, and dead politicians. There is no guidance on what “objective” historical teaching means, except this judge’s view that TUSD’s Mexican American Studies courses were not objective.

Finally, the administrative law judge gave no explanation for why “emotionally charged” teaching should be prohibited when the statute expressly affirms Arizona teachers’ right to discuss “controversial” aspects of history.

While Arizona’s ethnic studies law shut down TUSD’s Mexican American Studies program, it is entirely unclear how far the legislature’s broad directives not to promote “resentment” or “ethnic solidarity” will reach. This ambiguity alone will chill teachers from presenting lawful material in a lawful way. For example, some sources incorrectly reported that TUSD removed Shakespeare’s “The Tempest” from classrooms. TUSD emphatically denies removing The Tempest from any classroom or lesson plan, saying in a press release that “[t]eachers may continue to use materials in their classrooms as appropriate for the course curriculum; ‘The Tempest’ and other books approved for curriculum are still viable options for instructors.” But TUSD apparently told a teacher who asked about the book that teaching The Tempest is inappropriate where “the likelihood of avoiding discussions of colonization, enslavement, and racism were remote.”[^9] It appears therefore that TUSD has already created a more stringent test for acceptable curriculum material, even if this test is not an expression of official policy. This chilling effect is perhaps the most pernicious aspect of the ethnic studies law, and absent further judicial construction the law will continue to limit teaching about history and culture.

1: Nicholas Lundholm, Note, Cutting Class: Why Arizona’s Ethnic Studies Ban Won’t Ban Ethnic Studies, 53 Ariz. L. Rev. 1041 (2011).
2: Rodolfo Acuna, Occupied America: A History of Chicanos 262 (6th ed. 2007).
3: Lundholm, *supra* note 1, at 1065.
4: ALJ Decision, *supra* note 2, at 35.