Lead Opinion
Oрinion by Judge Rakoff; Partial Concurrence and Partial Dissent by Judge Clifton.
OPINION
The children of the Tucson Unified School District (“TUSD”), a majority of whom are of Mexican or other Hispanic descent, have a natural interest in knowing more about their cultural heritage and that of their community — or so the school board of Tucson decided, inaugurating a Mexican American Studies (“MAS”) program in the Tucson public schools. Arizona state superintendents of education, in the belief that MAS was being perverted into a program for promoting ethnocentrism and reverse racism, successfully sponsored and implemented legislation that did away with the program. The issue this case presents is whether in so doing they and their colleagues violated the constitutional rights of TUSD students.
In 2010, the Arizona legislature passed H.B. 2281, codified at Arizona Revised Statutes (“A.R.S.”) §§ 15-111 and 15-112, which directly led to the elimination of the MAS program. The statute prohibits a school district or charter school from including in its program of instruction any courses or classes that: (1) “Promote the overthrow of the United States government,” (2) “Promote resentment toward a race or class of people,” (3) “Are designed primarily for pupils of a particular ethnic group,” or (4) “Advocate ethnic solidarity instead of the treatment of pupils as individuals.” A.R.S. § 15-112(A). If the state board of education or the superintendent of public instruction determines that a school district is in violation of the statute, the district has sixty days to achieve compliance (e.g., by eliminating the program), failing which the state superintendent or state board may direct the department of education to withhold ten percent of the district’s state funding. A.R.S. § 15-112(B). The parties do not dispute that the statute was enacted almost entirely with the MAS program in mind, and MAS was the first and only ethnic studies program that has been found to be in violation of § 15-112.
This case was originally filed on October 18, 2010 by ten teachers and the director of TUSD’s MAS program. The complaint was later amended to add two TUSD students,' Maya Arce and Korina Lopez,' and their parents as next best friends. A third student, Nicolas Dominguez, and his mother as his next best friend intervened in the case. However, Nicolas Dominguez and Korina Lopez voluntarily dismissed their appeals after graduating from high school, and the teachers’ and director’s claims were dismissed for want of standing in an Order dated January 10, 2012 from which no appeal has been taken. Thus, the only remaining plaintiffs are student Maya Arce and her father and next bеst friend, Sean Arce. Defendants are the Superintendent of Public Instruction, Diane Douglas,
Plaintiffs assert that § 15-112, as enacted and enforced against the MAS' program, violates their constitutional rights
In a Memorandum Order dated March 8, 2013, the district court granted рlaintiffs’ motion for summary judgment with respect to § 15 — 112(A)(3) on First Amendment overbreadth grounds, but denied the motion with respect to all other claims on which plaintiffs had sought summary judgment. The court granted defendants’ summary judgment motion with respect to all of plaintiffs’ remaining First Amendment claims. It denied plaintiffs’ motion for a preliminary injunction. Finally, it sua sponte granted summary judgment for defendants on plaintiffs’ equal protection claim. The net of all this was to allow final judgment to be entered, dismissing all of plaintiffs’ attacks on the statute and its application, except for plaintiffs’ claim that § 15 — 112(A)(3) was unconstitutionally, overbroad. Since, moreover, the district court determined that that section was severable from the other sections, the final judgment invalidated only § 15 — 112(A)(3).
Plaintiffs now appeal the district court’s decision with respect to their equal protection claim, their First Amendment over-breadth claim with respect to §§ 15-112(A)(2) and (A)(4), their First Amendment viewpoint discrimination claim, and their Fourteenth Amendment vagueness claim. Defendants cross-appeal the district court’s decision that § 15-112(A)(3) is overbroad in violation of the First Amendment. We affirm the district court’s decision in part, reverse in part, and remand for further proceedings in accordance with this opinion.
Facts
The pertinent fаcts are as follows. As of April 20, 2011, sixty percent of the children enrolled in the Tucson public schools were of Mexican or other Hispanic descent. The MAS program was developed in 1998 and later expanded under a federally enforced desegregation decree. See Fisher v. Tucson Unified Sch. Dish,
Efforts to disband the MAS program began in 2007, after a group of students walked out of a speech by the Deputy Superintendent of Public Education, Margaret Garcia Dugan. Ms. Dugan was giving a speech that was intended to refute a prior allegation made to the student body that “Republicans hate Latinos.” In an open letter to the City of Tucson following the speech, the then Superintendent of Public Instruction, Tom Horne, asserted that “the students did not learn this rudeness at home, but from their Raza teach
The formal bill, H.B. 2281, 49th Leg., 2d Sess. (Ariz.2010), passed the state legislature, and on May 11, 2010, Governor Jan Brewer signed it into law with an effective date of December 31, 2010. Relevant aspects of the legislative history are summarized below in the analysis of plaintiffs’ equal protection claim.
Following the enactment of 15 — 112, Horne successfully campaigned to become Arizona Attorney General. On December 30, 2010, his last day in office as the superintendent of public instruction and the day before the statute took effect, Horne prematurely issued á finding that TUSD was in violation of A.R.S. § 15-112 because of its MAS program, and gave TUSD sixty days to “eliminate the Mexican American Studies courses.” The finding noted that three ethnic studies courses “could be found in •violation,” but that he had received complaints only about the MAS program.
John Huppenthal succeeded Home as the superintendent of public instruction immediately after serving as an Arizona state senator. On January 4, 2011 — four days after taking office as superintendent — he issued a press release supporting Horne’s finding. See Arizona Department of Education, Superintendent of Public Instruction John Huppenthal’s Official Statement on TUSD Violation of A.R.S. § 15-112 (Jan. 4, 2011), available at http://www. azed.gov/public-relations/files/2011/08/pr 01-04-ll.pdf (last visited June 9, 2015).
On May 2, 2011, Cambium, after visiting classes, conducting focus groups, and reviewing curriculum materials, issued a report (the “Cambium Report”) that found that “no observable evidence was present to indicate that any classroom within [TUSD] is in direct violation of the law, A.R.S. 15-112(A). In most cases, quite the opposite is true.” Huppenthal rejected the Cambium Report’s findings and directed the Arizona Department of Education (“ADE”) to make a separate investigation of the program. On the basis of that second investigation, Huppenthal found the MAS program in violation of A.R.S. §§ 15-112(A)(2), (A)(3), and (A)(4). TUSD appealed the decision, and an administrative law judge affirmed Huppenthal’s finding of violation. On January 16, 2012, Huppenthal accepted the ALJ’s decision and withheld ten percent of TUSD’s funds, retroactive to the expiration of 60 days from his initial finding of violation. Further, he required TUSD to remove all MAS instructional materials from K-12 classrooms by February 29, 2012. Faced with these sanctions, TUSD terminated the MAS program on January 10, 2012.
Discussion
This Court reviews de novo a district court’s grant or denial of summary
We begin our discussion with plaintiffs’ claim that the enactment and closely linked enforcement of § 15-112 denied them equal protection of the law, in violation of the Fourteenth Amendment. In its Memorandum Order dated March 8, 2013, the district court, sua sponte, granted summary judgment for defendants dismissing this claim. While it is within the power of a district court to grant summary judgment sua sponte, see Norse v. City of Santa Cruz,
Here, the district court did not give prior notice to the parties, but found that “the merits of [this claim had] been fully and fairly vetted in connection with Plaintiffs’ second motion for preliminary injunction.” Acosta v. Huppenthal, No. CV 10-623-TUC-AWT,
That decision was not harmless, given the evidence plaintiffs now represent they would have presented on summary judgment had they been given opportunity. Indeed, this evidence is in many respects relevant to our analysis of the merits of the equal protection claim, infra, where we' conclude that there is a genuine issue of fact as to whether the statute was enacted and/or enforced with discriminatory intent. For example, plaintiffs refer us to legislative hearings and administrative documents (discussed below) that are relevant to a discriminatory intent analysis. Furthermore, plaintiffs assert that, if given the opportunity, they would have presented emails of legislators evincing discriminatory intent and information regarding the historical background surrounding the passagе of H.B. 2281, as well as additional evidence with respect to Huppenthal’s rejection of the Cambium' Report and complaints that the state had received about other ethnic studies programs that made them indistinguishable from MAS. Accord
That said, in light of the evidence presented in the record and on appeal, we see no reason to remand the equal protection claim for additional briefing on summary judgment, because, even on the record before us, we find that there are genuine issues of fact regarding whether the enactment and/or enforcement of § 15-112 was motivated at least in part by a discriminatory intent. ■ We therefore reverse the district court’s grant of summary judgment for defendants and remand the equal protection claim for trial.
We reach this conclusion even though we agree with the district court that the statute is not discriminatory on its face. Plaintiffs argue that § 15-112 is facially discriminatory because the legislative history shows that the use of the term “ethnic” in § 15-112(A)(3) and (A)(4) refers specifically to ethnic minorities. See A.R.S. §§ 15-112(A)(3) (prohibiting classes “designed primarily for pupils of a particular ethniс group”), (A)(4) (prohibiting classes that “advocate ethnic solidarity”). However, a review of legislative history is only appropriate in a facial analysis where the application of the plain meaning of a word is ambiguous or otherwise leads to absurd or futile results. See United States v. Am. Trucking Assocs.,
Even if § 15-112 is not facially discriminatory, however, the statute and/or its subsequent enforcement against the MAS program would still be unconstitutional if its enactment or the manner in which it was enforced were motivated by a discriminatory purpose. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
With respect to the first Arlington Heights factor — the impact of the official action and whether that bears more heavily on one race than another — it is undisputed that the statute’s enactment and enforcement has had a disparate impact on Mexican American students, such as plaintiff Maya Arce. Not only were sixty percent of all TUSD students of Mexican or other Hispanic descent, but also ninety percent of students in the MAS program were such. Moreover, defendants concede that the statute was enacted in response to complaints about the MAS program and that the statute has been enforced only against the MAS program, even though two other ethnic studies programs in Arizona were alleged by the state superintendent to seemingly violаte § 15-112. Accordingly, the enactment and enforcement of § 15-112 has had a disproportionate impact on Mexican American and other Hispanic students.
It is true, to jump ahead to the fifth Arlington Heights factor — the relevant legislative or administrative history — that the legislative history contains only a few snippets of overtly discriminatory expression. However, given that “officials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority,” we look to whether they have “camouflaged” their intent. Smith v. Town of Clarkton,
During hearings regarding H.B. 2281, which was later codified as § 15-112, the MAS program was the sole'target of the legislative effort. When introducing H.B. 2281 before the House Education Committee, Representative Steve Montenegro characterized MAS as creating “racial warfare.” Hearing on H.B. 2281, H. Comm. on Educ. (“H.B: 2281 House Educ. Comm. Hearing”), 49th Leg., 2d Sess., at 1:16:35 (2010) (statement of Rep. Montenegro), available at http://azleg.granicus.com/ MediaPlayer.php?view_id=17&clip_id= 6760 (last visited June 9, 2015).
Such statements, especially when coupled with the administrative history (discussed below) that immediately preceded enactment, raise at least a plausible inference that racial animus underlay passage of the legislation.
At the time H.B. 2281 moved through the legislature, future Superintendent Huppenthal was a state senator and the Chairman of the Senate Committee on Education Accountability and Reform. See H.B. 2281 S. Comm. Educ. Accountability and Reform Hearing. About one month before Governor Brewer signed H.B. 2281 into law, Huppenthal introduced an amendment to the bill that granted authority to the state superintendent to determine whether a school district was in violation of the statute, an amendment which was adopted by the Senate and incorporated in § 15-112. See Senate Amendments to H.B. 2281, 49th Leg., 2d Sess. (Ariz. 2010), available at http://www.azleg.gOv// FormatDocument.asp?inDoc=Aegtext/49 leg/2r/adopted/s.2281ed.doc.htm&Session_ ID=93 (last visited June 9, 2015); Floor Amendment Explanation, H.B. 2281, 49th Leg., 2d Sess. (Ariz.2010), available at http://www.azleg.g0v//F0rmatD0cument. asp?inDoc=/legtext/491eg/2r/adopted/2281 huppenthal808.doc.htm&Session_ID=93 (last visited June 9, 2015); see also H.B. 2281 S. Comm. Educ. Accountability and Reform Hearing at 2:50:38. Then, prior to H.B. 2281’s effective date, Huppenthal successfully ran to become state superintendent of public instruction; in the process he aired radio campaign advertisements where he pledged to “stop La Raza” if elected. He was subsequently elected and took office immediately after the statute went into effect.
On December 30, 2010, the day before § 15-112 went into effect and just before Horne ceded his position of state superintendent to Huppenthal, Horne issued a (premature) “Finding” that TUSD was in violation of the not-yet-effective § 15-112 and directed TUSD to “eliminate the Mexican American Studies courses” within sixty days or risk having ten percent of its budget withheld. As the district court found, “[t]he timing of the Finding underscores Horne’s determination to do away with the MAS program, and it also means that Horne necessarily applied the statute retroactively, without any effort to show that the problematic materials were in use at the time of the Finding.” Acosta,
Upon assuming office as superintendent on January 4, 2011, Huppenthal immediately issued a press release supporting Horne’s finding and stating that TUSD had the responsibility “to ensure their programs come into full compliance with A.R.S. § 15-112 within 60 days of Superintendent Horne’s official finding.” Nonеtheless, Huppenthal did not immediately enforce Horne’s finding, but instead commissioned Cambium Learning to audit the MAS program and determine whether the program was in compliance with § 15-112. Cambium audited MAS courses over a period of two months by visiting classrooms, reviewing course materials, and holding focus group interviews with various stakeholders. The auditors visited 39.5% of high school MAS courses and spent about thirty minutes in each class. In May 2011, Cambium released its report, which found that there was no evidence that MAS was in violation of § 15-112. The auditors did not observe any evidence that MAS courses promoted resentment towards a race or class of people, nor that they were necessarily designed for pupils of a particular ethnic group, as all students were welcomed into the program.
Nevertheless, in one of the most telling actions in this entire saga, Huppenthal then rejected the conclusions of the Cambium study that he himself had commissioned, concluding that, because the MAS department was aware of the audit, “naturally the auditors are never going to observe [the promotion of racism or ethnic solidarity].” He ordered a new, separate ADE investigation, which reviewed only a selection of course materials and the MAS program website. There are conflicting statements in the record as to whether ADE officials even visited classrooms as part of the investigation. Yet, following ADE’s investigation, Huppenthal found the MAS program in violation of A.R.S. §§ 15-112(A)(2), (A)(3), and (A)(4).
In reviewing Huppenthal’s finding of violation in the context of plaintiffs’ equal protection claim, the district court held that deficiencies in the Cambium Report, such as a limited number of classroom observations and a supposed failure to obtain comprehensive information from the MAS department, gave Huppenthal a reasonable basis to disregard the Cambium Report. But these were not the grounds Huppenthal himself gave for rejecting the Report and there was certainly sufficient evidence for a reasonable fact-finder to infer otherwise. Whether the motivation behind Huppenthal’s rejection of the Report was based on its alleged deficiencies, or whether it was based on a predeter
In short, applying the 'five Arlington Heights factors to the evidence of record— taken, as it must be for these purposes, most favorably to plaintiffs — there is sufficient evidence to raise a genuine issue of material fact as to whether the enactment and/or enforcement of § 15-112 here challenged was motivated, at least in part, by an intent to discriminate against MAS students on the basis of their race or national origin.
We now turn to plaintiffs’ claims under the First Amendment. As a general matter, plaintiffs assert that their First Amendment rights are implicated because the enforcement of § 15-112 impedes TUSD students’ right to receive information and ideas. See Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,
Defendants argue that we should apply our holding in Downs v. L.A. Unified School District,
Therefore, we are tasked with determining the appropriate level of scrutiny that applies to a state’s decision to restrict classroom materials presented as part of a curriculum approved by a local school board in light of a student’s right to receive information and ideas. This analysis necessarily implicates the delicate balance between a student’s First Amendment rights and a state’s authority in educational matters. See Hazelwood Sch. Dist. v. Kuhlmeier,
At least four other circuits have grappled with the breadth of a student’s First Amendment rights in the context of the development of a school curriculum, and they have developed tests granting varying levels of leniency to the government. For example, the Eleventh and Eighth Circuits have developed tests that require schools to provide legitimate reasons for limiting students’ access to information. In Virgil v. School Board of Columbia County,
The Seventh and Fifth Circuits give the government greater scope in curtailing school curricula. In Zykan v. Warsaw Community School Corporation,
Here, the district court followed the Eleventh Circuit’s decision in Virgil,
The first step in an over-breadth analysis is to construe the statute, as “it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Id. at 945 (quoting United States v. Williams,
The district court found that the primary legitimate purpose of the statute, on its face, is to prohibit courses that “promote racism,” and the like, a holding which neither party challenges on appeal. Cf. A.R.S. § 15-111 (“The legislature finds and declares that public school pupils should be taught to treat and value each other as individuals and not be taught to resent or hate other races or classes of people.”). Applying the Kuhlmeier standard discussed above, the district court assessed whether the statutory provisions of § 15-112 are reasonably related to the legitimate pedagogical interest of reducing racism in schools. Plaintiffs appeal the district court’s decision upholding § 15-112(A) generally, and § 15-112(A)(2) and (A)(4), specifically, under a First Amendment overbreadth analysis. Defendants, in their cross-appeal, challenge the district court’s determination that § 15-112(A)(3) is overbroad.
Section 15-112(A) begins: “A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following: [the four enumerated prohibitions].” Plaintiffs now argue that the phrases “any courses or classes” and “include any”, are overbroad, because they result in onerous penalties on the school district if prohibited content is found in even one course or class. While we are skeptical that this is a reasonable reading of the statute as a whole given its provision of a 60-day “cure” period that could easily deal with an isolated violation, we need not reach the issue, for it was not fairly raised below. Indeed, the district court, in its detailed opinion, did not expressly make a finding with regards to
But there is no question that plaintiffs did challenge subsections (A)(2), (A)(3), and (A)(4) on overbreadth grounds, so we consider each in turn. Section 15-112(A)(2). prohibits any courses or classes that “[p]romote resentment toward a race or class of people.” Plaintiffs’ challenge to this provision stems from a fear that the statute will be used to target courses or' classes that incidentally promote resentment towards a race or class of people, even though the course was not designed for that purpose but seeks to impart to students a range of historical and cultural perspectives. For example, they are concerned that a discussion in an English class of Mark Twain’s The Adventures of Huckleberry Finn or Richard Wright’s Black Boy might inadvertently bring about feelings of resentment in some students and prompt a finding of violation.
However, we agree with the district court that the provision on its face is not overbroad in violation of the First Amendment, because the statute targets the design and implementation of courses and curricula and does not restrict individual student speech or class discussions.
The exceptions to the statute аlso support the district court’s finding that the statute targets the design of courses and not individual feelings or class discussions, because the exceptions provide additional limitations on the statute’s reach. Section 15-112(F) states that “[n]othing in this section shall be construed to restrict or prohibit the instruction of the holocaust, any other instance of genocide, or the historical oppression of a particular group of people based on ethnicity, race, or class.” A.R.S. § 15-112(F) (emphasis added). This instructs the state and the school districts that the statute should not be construed in a manner that would prohibit the objective instruction of historical oppression, regardless of whether that instruction incidentally promotes resentment towards a race or class of people. It would be inappropriate for us to read the statute more broadly to find that this provision unconstitutionally prohibits courses that unintentionally promote resentment, as the provision is readily susceptible to the more narrow construction we have identified. See Stevens,
Skipping ahead to subsection (A)(4), the district court held that § 15-
The only provisiоn the district court found to be constitutionally over-broad in the sense we have been discussing is § 15-112(A)(3), which prohibits courses and classes that “[a]re designed primarily for pupils of a particular ethnic group.” The court found that any legitimate purpose this provision could serve is already encompassed by subsections (A)(2) and (A)(4). If a course designed primarily for pupils of a particular ethnic group does not promote resentment towards other races or classes of people and does not advocate ethnic solidarity instead of treating pupils as individuals, the court questioned whether any legitimate purpose could be served by forbidding such classes. We agree. The very danger we perceive was corroborated, at oral argument, when we asked counsel for defendants whether the statute could be found to prohibit a public school course in San Francisco on the topic of Chinese history that was open to all students but was designed in consideration of the substantial Chinese and Chinese American student population there that might benefit from a greater understanding of its history. Defendants asserted that the course could be found in violation. As indicated by this example, subsection (A)(3) threatens tо chill the teaching of ethnic studies courses that may offer great value to students — yet it does so without furthering the legitimate pedagogical purpose of reducing racism. We therefore affirm the district court’s holding that (A)(3) is overbroad in violation of the First Amendment.
Turning next to plaintiffs’ other First Amendment challenge to § 15-112— namely, that it imposes viewpoint discrimination — plaintiffs again complain that the district court prematurely entered summary judgment against them on this claim. Plaintiffs raised a First Amendment viewpoint discrimination argument in their second motion for preliminary injunction, but only moved for summary judgment on their First Amendment overbreadth claim. Nevertheless, the district court granted summary judgment for defendants on all of plaintiffs’ First Amendment claims, even though the viewpoint discrimination claim had not been briefed by either of the parties in their cross-motions for summary judgment. Moreover, in contrast to its sua sponte grant of summary judgment discussing plaintiffs’ equal protection claim, here the order of the district court did not even review the evidence with respect to the viewpoint discrimination claim. Accordingly, we remand that claim to the district court for appropriate further proceedings.
Defendants argue that plaintiffs have only a generalized interest in the validity of the law and, therefore, lack standing to pursue a vagueness claim. See Hollingsworth v. Perry, — U.S.-,
However, where the effect of a vague statute would infringe upon a party’s First Amendment rights, standing requirements to challenge the statute under the Fourteenth Amendment Due Process Clause are broader than they otherwise might be. See Hynes v. Mayor & Council of Borough of Oradell,
Here, as already suggested by our discussion of plaintiffs’ First Amendment claims above, plaintiffs have a liberty interest grounded in their First Amendment right to receive information. See Krug v. Lutz,
A statute is impermissibly vague if it “fails to provide a reasonable opportunity to know what conduct is prohibited, or is sо indefinite as to allow arbitrary and discriminatory enforcement.” United States v. Mincoff,
We agree. Due process “does not require ‘impossible standards’ of clarity.” Kolender v. Lawson,
Plaintiffs primarily rely on the case of Tucson Woman’s Clinic v. Eden,
Finally, and notwithstanding our directions to remand the equal protection and First Amendment viewpoint discrimination claims for further proceedings, we must review the district court’s decision that § 15 — 112(A)(3) is severable from the rest of the statute, as it is the one provision we affirmatively have held to- be unconstitutional. A statute’s severability is determined under state law. See Dep’t of Treasury v. Fabe,
The district court held that “there appears to be no reason to conclude that the other provisions of the statute could not be enforced without subsection (A)(3), nor is there any indication that the legislature would not have enacted the statute without subsection (A)(3).” Acosta,
In sum, we affirm the district court’s rulings that § 15-112(A)(3) is unconstitutional in violation of the First Amendment but severable from the rest of the statute; that §§ 15 — 112(A)(2) and (A)(4) are not overbroad in violation of the First Amendment; and that §§ 15-112(A)(2) and (A)(4) are not vague in violation of the Due Process Clause. We reverse the district court’s grant of summary judgment for defendants on plaintiffs’ equal protection claim and remand that claim for trial. Lastly, we remand plaintiffs’ First Amendment viewpoint discrimination claim to the district court for further proceedings in accordance with this opinion. Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
Notes
. Superintendent Diane Douglas succeeded former Superintendent John Huppenthal, and, accordingly, has been substituted as a defendant pursuant to Federal Rule of Appellate Procedure 43.
. The MAS program was previously called "Mexican American/Raza Studies.” Plaintiffs assert that “La Raza” more generally refers to Mexican Americans. See American Heritage Dictionary of the English Language, available at http://ahdictionary.com/word/search.html? q=la + raza&submit.x=0&submit.y=0 ' (last visited June 9, 2015) (defining “La Raza” as "Mexicans or Mexican Americans considered as a group, sometimes extending to all Spanish-speaking people of the Americas”).
. We take judicial notiсe of the press release, because it is a public record on file with the Arizona State Board of Education. See Fed. R.Evid. 201(b); Lee v. City of Los Angeles,
. We take judicial notice of legislative history materials pursuant to Federal Rules of Evidence Rule 201(b). See Aramark Facility Servs. v. SEIU, Local 1877,
. Plaintiffs state that if they had been given the opportunity to brief the equal protection claims under a summary judgment analysis, they would have introduced emails from legislators evincing animus against Mexican Americans while advocating for this legislation. Though such material would likely be highly relevant to the Arlington Heights analysis, Vill. of Arlington Heights,
. Plaintiffs advance the separate argument that § 15-112 should be struck down because its enactment and enforcement was motivated by a desire to disadvantage a specific, politically unpopular group — the students, teachers, and parents who supported the MAS program. Though the district court did not rule on this particular issue, we find no evidence to support plaintiffs' assertion that its enactment or enforcement independently targeted supporters of the MAS program without regard to their race or national origin.
. Plaintiffs also present an alternative basis for their equal protection claim by invoking what are known as the "political structure” equal protection cases, Hunter v. Erickson,
. Defendants argue, seemingly for the first time on appeal, that they are not responsible for the elimination of the MAS curriculum and its materials, but rather that TUSD is. Therefore, they assert, they should not be liable for curricular decisions of the school district that may have infringed on plaintiffs’ First Amendment rights. This characterization of the circumstances surrounding the removal of material is artificial and ignores completely the fact that former Superintendent Huppenthal directly caused, indeed ordered, TUSD to remove MAS-related books from its curriculum as part of his finding TUSD was not in compliancе with § 15-112. Specifically, the State not only imposed a fine of ten percent of state funding until TUSD came into compliance, but also required proof that all MAS instructional material had been removed from TUSD classrooms. Former Superintendent Huppenthal was personally responsible for monitoring compliance with this demand. Therefore, even if defendants had not waived their argument by failing to raise it below, we find there is no genuine dispute that the defendants are responsible for the elimination of the program and removal of material from the classroom and are
. Federal rules of statutory construction are the same in these respects as Arizona's. See Food & Drug Admin, v. Brown & Williamson Tobacco Corp.,
. We would share plaintiffs’ concerns in the event the statute were used to censor materials that individually, and incidentally, could cause feelings of resentment but that are placed within the context of an entire course or curriculum in a manner that creates an unbiased presentation of material.
. As the issue of standing here is a question of law, not fact, we will assess whether we have jurisdiction rather than remanding the question to the district court. Cf. Steel Co. v. Citizens for a Better Environment,
. Defendants argue that Tucson Woman's is distinguishable, because it involved a criminal statute that is subject to stricter review. See Vill. of Hoffman Estates v. Flipside,
. Plaintiffs also fail to show that § 15-112 is vague as applied. They argue that material facts exist as to whether the statute’s alleged lack of standards allowed defendants to enforce the statute inline with their own preformed biases about the MAS program.' However, they conflate this argument with their equal protection selective enforcement arguments, in that they do not adequately explain how the allegedly vague words in the statute allowed for discriminatory enforcement in this instance. Arbitrary or discriminatory enforcement of a statute does not necessarily mean that the statute was vague. Accordingly, we affirm the district court's holding that the statute is not vague as applied to the MAS program.
. Plaintiffs also point us to aspects of the legislative history where the sponsor of the bill and former Superintendent Home comment оn their goals to stop grouping students by race, and to drafts of § 15-112 that indicate when subsection (A)(3) was added to the bill. See H.B. 2281 S. Comm. Educ. Accountability and Reform Hearing at 2:43:03-13 ■ (statement of Rep. Steve Montenegro); H.B. 2281 House Educ. Comm. Hearing at 1:31:18 (statement of Superintendent Horne); Montenegro Floor Amendment, H.B. 2281, 49th Leg., 2d Sess. (Ariz.2010), available at http:// www.azleg.gov//FormatDocument.asp?in Doc=/legtext/491eg/2r/adopted/h.2281sm.doc. htm & Session_ID = 93. We are not persuaded that these isolated aspects of the legislative history show that the legislature would not
Concurrence Opinion
concurring in part and dissenting in part:
I agree with and concur in most of the majority opinion, but I have one significant disagreement that prevents me from concurring in full. The majority opinion concludes, at 976-77, that there are genuine issues of fact regarding whether the enactment and/or enforcement of A.R.S. § 15-112 was motivated at least in part by a discriminatory intent. It thus orders that the equal protection claim be remanded for trial. I agree that the equal protection claim should be remanded, but I cannot agree that Plaintiffs have already presented sufficient evidence to establish that there is a genuine dispute of material fact on that issue. We should simply remand for further proceedings, without precluding further consideration of summary judgment.
The majority opinion concludes, specifically, that sufficient evidence was presented to raise a genuine dispute as to whether the enactment and/or enforcement of the statute “was motivated, at least in part, by an intent to discriminate against MAS students on the basis of their race or national origin.” Majority op. at 981. In doing so, however, the majority opinion conflates antipathy toward Tucson’s Mexican American Studies program (“MAS”) with animus toward Mexican Americans more generally. They are not the same. The district court recognized that difference when it concluded that “the evidence indicates that Defendants targeted the MAS program, not Latino students, teachers, or community members who supported or participated in the program.” The majority opinion ignores that distinction.
All of the evidence cited by the majority opinion to support its conclusion pertains specifically to the Tucson MAS program, not to general hostility toward Mexican Americans. The majority leans heavily, for example, on the observation that statute was enacted in response to complaints about the Tucson MAS program and has been enforced only against that program. Id. at 973-74 & 977-78. It cites a legislator’s negative description of the Tucson MAS program and attacks on that program by other politicians. Id. at 979-80. But what it doesn’t point to is evidence that supports the contention that the motivation for enacting or enforcing the statute was animus against Mexican Americans. That there was opposition to the Tucson MAS program does not prove that the opposition was ethnically animated.
The majority opinion notes Plaintiffs’ statement that they would have introduced evidence to support that proposition if they had been given the opportunity to brief the equal protection claims under a summary
. There could have been good reasons for public officials to oppose the Tucson MAS program without any racial animus whatsoever. The Tucson school district appealed the findings of Superintendent John Huppenthal that the program violated the statute, and following an evidentiary hearing, an administrative law judge found that the Tucson MAS program did, in fact, violate the statute. The judge concluded that the program had courses that violated § 15-112(A)(2) (promoting racial resentment) and (A)(4) (advocating ethnic solidarity instead of treating pupils as individuals). He concluded that the program had “courses designed for Latinos as a group that promote[] racial resentment against “Whites.’ ” He found that evidence at the hearing “demonstrate^ that MAS classes cause students to develop a sense or racial resentment toward the ‘white oppressor’ or ‘dominant’ group. The philosophy of ‘us against them’ is a persistent theme that exists within the MAS program.”
Those conclusions are not before us for review, and I have no independent knowledge or basis to say whether they were accurate. But if a public official believed those charges to be true, that officeholder’s opposition to the Tucson MAS program would not be surprising and would not itself demonstrate any discriminatory motivation. The majority opinion agrees with the district court’s conclusion that the statute is not discriminatory on its face, and I agree as well. If so, then support for the statute, without any other proof of racial animus, does not prove discriminatory motivation.
I respectfully dissent from that portion' of the majority