Monday, January 12, 2015
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.A huge question at the hearing was, if one portion of the law is invalidated, does that mean the entire thing is thrown out?
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.