As reported earlier, Tucson Unified School District students Maya Arce, Korina Lopez and Nicolas Dominguez, as well as their attorneys, were down at the 9th Circuit Court of Appeals in San Francisco today making a case against A.R.S § 15-112, the law that pretty much made the Mexican American studies program illegal.

One of the minds in the students' defense team, Anjana Malhotra, who is formerly a clinical teaching fellow at the Korematsu Center and is now an associate professor at SUNY Buffalo Law School, said, in summary, that they did well.

"They were concerned that the law was enforced regardless of the positive effects on students," she said during a phone call a few hours after leaving the courtroom. The law got rid of MAS classes, "which accelerated students' achievement, and officials who enforced the law knew that it had positive results. Also, there is a disproportionate impact on a minority Mexican American community, the law creates this disproportionate impact, how can that not be evidence of discriminatory intent?"

From an email Malhotra wrote to me in the evening:

In defending the Arizona ethnic studies ban passed for the purpose and effect of exclusively targeting and eliminating the highly successful TUSD’s Mexican American Studies classes, Arziona made three major points in the Ninth Circuit argument today that undercut its argument that the law and its actions were unconstitutional.

First, Arizona repeatedly argued that the substantial academic achievement Mexican American students gained from taking MAS classes was “irrelevant” to the facial and as-applied equal protection claims. To the contrary, and as the Judges correctly raised in questioning Arizona, the fact that the Arizona Legislature and Huppenthal exclusively eliminated classes that benefited Mexican Americans, and thus burdening Mexican Americans exclusively, is evidence of intentional discrimination supporting the argument that the statute and its enforcement violated the equal protection clause of the Fourteenth Amendment.

Second, Arizona argued that a Chinese American History class would violate the statute, regardless of content – demonstrating the impermissible and sweeping overbreadth, vagueness and equal protection problems with the law. This proposition gave the Court and the audience pause—and demonstrates how the statute gives the state unlimited power to enforce the law (and did) in an arbitrary and discriminatory manner violating the Supreme Court’s test for facial and as-applied vagueness. Further, given Tom Horne's and legislators’ express insistence that ARS 15-112’s use of the term “ethnic group” did not include to white or European ethnic groups such as Greeks and Romans, Arizona’s contention that it would ban Chinese American History, just as Mexican American classes regardless of content, establishes that the statute and enforcement is in direct violation of the equal protection clause of the Fourteenth Amendment by discriminating on the basis of race.

A huge question at the hearing was, if one portion of the law is invalidated, does that mean the entire thing is thrown out?

Malhotra said that if, for instance, the portion of the law banning classes for particular ethnic groups is found to be overbroad, then the entire law would be invalidated—the law doesn't have a clause stipulating that if one portion is invalidated, the rest of the law still survives. So, the team doesn't have to prove that ALL guidelines of the law are unconstitutional, but at least one of them is.

"Equal protection claims are hard because you have to show intentional discrimination, but it works well here because you have to show a law or government action was taken to single out a particular group, and that is exactly what this statute did," Malhotra said.

So, good news? We won't know for a while. In the mean time, TUSD still has to deal with the state saying its teachers are not implementing the culturally relevant curriculum in a Superintendent of Public Instruction Diane Douglas kind of way. If that's not fixed, the district faces more budget cuts.