Limited Appeal

TUSD's legal team heads to Phoenix for a hearing on ethnic studies

On Friday, Aug. 19, lawyers representing the Tucson Unified School District will be in Phoenix for the first portion of a three-part administrative hearing that may determine the future of the district's Mexican-American studies classes.

The point of the hearing is to ask the state for clarification regarding John Huppenthal's findings that the classes violate the state's anti-ethnic studies law—which was created last year—before the state punishes the district by withholding 10 percent of state funding.

Although the TUSD governing board determined that the classes do not violate the law, the state's superintendent of public instruction said they do, and made his findings public at a press conference in mid-June.

Lead attorney Heather Gaines of DeConcini McDonald Yetwin and Lacy, who is representing TUSD, told the Tucson Weekly that the Aug. 19 hearing starts at 8 a.m. at the Office of Administrative Hearings, 1400 W. Washington St., Suite 101, in Phoenix.

The hearing continues Tuesday, Aug. 23, and concludes on Wednesday, Sept. 14.

The anti-ethnic-studies law states that a school district or charter school can't have classes that promote overthrowing the U.S. government; promote resentment toward a race or class of people; be designed primarily for students of a particular ethnic race; or advocate ethnic solidarity instead of the treatment of students as individuals.

During his June press conference, Huppenthal never said the classes promote overthrowing the U.S. government; however, he determined that the classes broke all of the other facets of the law, based on an examination of materials gathered by the Arizona Department of Education.

He also cited Cambium Learning, the independent audit company that the state hired to take a closer look at the classes. But according to Cambium's May 2 report, the classes don't break the law—and Cambium even offered praise for the program and its teachers.

When asked how the TUSD attorneys plan to handle the hearings, Gaines referred to the district's appeal, which lists areas of concern in Huppenthal's findings, and claims that the findings do not provide enough information to show how the classes violate the law.

That TUSD appeals document makes it clear that the point of the administrative hearing isn't to address the allegations or to save ethnic studies, but to make sure the district isn't penalized and is in compliance with the law.

In preparation for the hearing, attorneys on both sides requested information and subpoenaed expert witnesses for depositions. Huppenthal's Phoenix attorneys, from Burch and Cracchiolo, subpoenaed TUSD governing board members Michael Hicks and Mark Stegeman, as well as TUSD Superintendent John Pedicone and TUSD interim deputy superintendent Maria Menconi.

The same Phoenix firm has been hired to defend Huppenthal in a federal lawsuit filed last year by 11 ethnic-studies teachers who challenge the legality and constitutionality of the law.

The state's expert witnesses could be of great benefit to Huppenthal's case, considering that Hicks has called for the elimination of Mexican-American studies, while Stegeman has tried to change the fundamental makeup of Mexican-American studies. Under Stegeman's tenure as board president, TUSD board meetings have been rife with public discord and contentious interactions between board members.

Gaines said she subpoenaed the Arizona Department of Education's chief of programs and policy, John Stollar, as well as Huppenthal. She also requested e-mails, communication and information from Huppenthal's office on ethnic studies and Cambium Learning.

The state's attorney also tried to subpoena Mexican-American studies program director Sean Arce and Chicano-literature teacher Curtis Acosta, both plaintiffs in the federal lawsuit, but the attorney representing those teachers in the federal lawsuit successfully fought the subpoenas.

That attorney, Richard Martinez, told the Weekly that he didn't understand why the state wanted the teachers' depositions for an administrative hearing, and that he didn't understand why attorneys representing TUSD would allow the teachers and other school-district representatives to be subpoenaed.

"Why would you allow depositions? What I proved is that you have no right to a deposition in an administrative hearing. Why would you expose your people to that? You can't get up and just handle Huppenthal on your own?" Martinez asked.

Gaines said her firm's approach has been to work with the state's attorneys in order to get what they need for the appeal process.

A series of e-mails—attached as evidence to the state's response to Martinez's motion to quash the subpoenas—is a good example of the cordial relationship between attorneys for the state and for TUSD. Gaines complied with a request to hand over notes that Stegeman made last year during a visit to a Mexican-American studies classroom, as well as copies of a "voluminous amount" of curriculum material.

Gaines said there was no hesitation, because the requested materials are all public records.

Martinez said he worries that the efforts of TUSD's legal team are part of a plan to dismantle Mexican-American studies, rather than fight for a program that has increased graduation rates and decreased dropout rates.

The alleged dismantling began when the Mexican-American studies department was reorganized this year, limiting Arce's control and his ability to supervise teachers. Martinez and ethnic-studies teachers also accuse the district of preventing them from doing outreach to recruit new students. The result: Enrollment is down this year, from more than 600 students to less than 300.

"We've been castrated, and inside, we're powerless, and we're down to almost a third of our classes," Martinez said.

At a recent meeting with members of the Mexican American Studies Community Advisory Board, Pedicone denied any interference with enrollment, and said that the low numbers are due to negative publicity.

Martinez disagreed.

"What we see going on right now is just a smoke screen. If you were playing the game legitimately, you would not do the legal maneuvers that they are doing," Martinez said. "In the end, Pedicone wants to blame Huppenthal for the demise of the program ... Then Pedicone can say, 'In lieu of the sanction, we're going to get rid of Mexican-American studies.' He has three votes to get rid of the program now, but ... he doesn't want him and the three school board members to take the hit for dismantling MAS."

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