TUSD Should Wait for Court Ruling Before Making Changes to Its Ethnic Studies Programs

There’s a court case pending which could throw out HB 2281 (now A.R.S § 15-112), the law designed to make TUSD’s ethnic studies curricula—first Mexican American Studies (MAS), now the Culturally Relevant Curriculum (CRC)—illegal. Without the law, Superintendent of Public Instruction Diane Douglas loses the hold she has over the CRC or the way its carried out in the classroom. The 9th Circuit Court of Appeals very well may rule against the law, meaning TUSD shouldn’t make any changes to CRC simply because Douglas demands them. The district should wait until the court decision, and request an extension if the court takes longer to decide than the district’s March 4 deadline.

To understand the position TUSD is in, it’s important to know the history of the Department of Education’s attack on the district’s ethnic studies programs.

When Tom Horne was Ed Supe, he loved to hate the Mexican American Studies program. He wore out the left lane of I-10 traveling to Tucson so he could stand in front of TUSD’s admin building and hold press conferences criticizing MAS. It made great press for Tom, stirring up his base’s fear of Hispanics, a move he hoped would help take him all the way to the governor’s office. But at the time, there was nothing he could do about MAS, really, except hold news conferences and criticize the program. He couldn’t issue an order demanding changes in the program any more than he could, say, tell the Marana School District how to teach science. The MAS program was perfectly legal, and it was up to the TUSD board to decide its fate.

Then came HB 2281,which was signed into law by Governor Brewer in May, 2010. The law did two things. First, it made it illegal for a school to teach classes that “promote the overthrow of the U.S. government,” “promote resentment toward a race or class of people,” “are designed primarily for pupils of a particular ethnic group” or “Advocate ethnic solidarity instead of the treatment of pupils as individuals.” Second, it said if a district is told it’s in violation of the law and “is substantially and deliberately not in compliance” within sixty days, the state can withhold ten percent of the money it’s supposed to pay the district.

For the first time, the Ed Supe had a sword to dangle over TUSD’s head: comply with our decisions about your ethnic studies program or lose over $14 million a year.

See if this sounds familiar. Hours before Horne left the Ed Supe office on January, 2011, to be replaced by John Huppenthal, Horne declared that MAS was illegal.

[Horne] said his findings show the program he has long sought to eliminate runs afoul of the law’s requirement that classes cannot be “designed primarily for pupils of a particular ethnic group.”

“It is inherently designed for students of a particular ethnicity, and it’s got to stop,” Horne said Friday.

The very existence of the Mexican-American studies program violates the law, he said, and the only way the district can comply is to scrap it.

If school officials refuse, Horne said they should lose 10 percent of their state funding, as allowed under the law. That amounts to nearly $15 million for TUSD.

Right. Horne made the same eleventh hour move against the MAS program that Huppenthal made this year against the CRC, passing the enforcement of his findings to the incoming superintendent.

Following the playbook written by Horne and Huppenthal, new Ed Supe Diane Douglas is using Huppenthal’s last minute pronouncement to go after the CRC. She may have adopted a kinder, gentler approach — or maybe not, depending on how you read her recent statements. Time will tell.

But here’s the thing. The only reason her order that TUSD change the way its courses are taught has any teeth is because she has A.R.S § 15-112 to back her up. Take away the law, and she’s back where Horne was prior to May, 2010: making toothless complaints against the program.

The law received some serious criticism from the Circuit Court judges in San Francisco Monday. No one knows what the judges will decide, but there’s a reasonable chance they will thrown out part or all of the law. No one knows when the judges will announce their decision. It could be a month; it could be four months.

If TUSD Superintendent Sanchez and his administrative team think the district should make changes to the CRC or the way it’s taught in the classroom, and if the board agrees, they should go ahead and make the changes. But if the district educators and the majority of the governing board think the changes are counterproductive, they should hold off until the court announces its decision, and they should argue for an extension of the Department of Education deadline until the state and the district know the fate of the law.

This article appears in Jan 8-14, 2015.