Mаya ARCE; her father and next best friend, Sean Arce, Plaintiffs-Appellants/Cross-Appellees, v. Diane DOUGLAS, Arizona Superintendent of Public Instruction, in her official capacity, Arizona State Board of Education, and Members of the Arizona State Board of Education, Defendants-Appellees/Cross-Appellants.
Nos. 13-15657, 13-15760.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 12, 2015. Filed July 7, 2015.
793 F.3d 968
III. Conclusion
Accordingly, we affirm the judgment of the district court.
Erwin Chemerinsky (argued), University of California Irvine School of Law, Irvine, CA; Richard M. Martinez, Law Office of Richard M. Martinez, Tucson, AZ; Anjana Malhotra, SUNY Buffalo Law School, Buffalo, NY; Sujal J. Shah, Jennifer MikoLevine, and Marcelo Quiñones, Bingham McCutchen, LLP, San Francisco, CA; Lorraine Bannai, Robert S. Chang, and Charlotte Garden, Fred Korematsu Center for Law and Equity, Ronald A. Peterson Law Clinic, Seattle University School of Law, Seattle, WA, for Plaintiffs-Appellants/Cross-Appellees.
Thomas C. Horne, Arizona Attorney General, Jinju Park and Leslie Kyman Cooper (argued), Assistant Attorneys General, Office of the Arizona Attorney General, Phoenix, AZ, for Defendants-Appellees/Cross-Appellants.
Meriem Hubbard and Ralph Kasarda, Pacific Legal Foundation, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation.
David Handzo, Julie Carpenter, and Elizabeth Bullock, Jenner & Block LLP,
Samantha Blevins, Arizona Education Association, Phoenix, AZ; Alice O‘Brien, Jason Walta, and Kristen Hollar, National Education Association, Washington, D.C., for Amici Curiae National Education Association and Arizona Education Association.
Charles Sipos, Nicholas Manheim, and David Perez, Perkins Coie LLP, Seattle, WA, for Amici Curiae Chief Earl Warren Institute on Law and Social Policy and the Anti-Defamation League.
Brian Matsui, Jeremy Merkelson, Laura Heiman, and Betre Gizaw, Morrison & Foerster LLP, Washington, D.C., for Amici Curiae Rodolfo Acuña, Bill Bigelow, Richard Delgado, and Jean Stefancic.
Marie Quasius, Ben Hellerstein, Tia Sargent, Raina Wagner, and Theodore Angelis, K & L Gates LLP, Seattle, WA; Steven Bender, Marc-Tizoc González, and Beth Lyon, Coral Gables, FL, for Amicus Curiae Latina and Latino Critical Legal Theory, Inc.
Warrington Parker and Mary Kelly Persyn, Orrick, Herrington & Sutcliffe LLP, San Francisco, CA, for Amici Curiae 48 Public School Teachers.
Opinion by Judge Rakoff; Partial Conсurrence and Partial Dissent by Judge Clifton.
OPINION
RAKOFF, District Judge:
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
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 best friend, Sean Arce. Defendants are the Superintendent of Public Instruction, Diane Douglas,1 the Arizona State Board of Education, and members of the Board of Eduсation.
Plaintiffs assert that
In a Memorandum Order dated March 8, 2013, the district court granted plaintiffs’ motion for summary judgment with respect to
Plaintiffs now appeal the district court‘s decision with respect to their equal protection claim, their First Amendment overbreadth claim with respect to
Facts
The pertinent facts 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. Dist., 652 F.3d 1131, 1134 (9th Cir.2011). The program sought to provide a culturally relevant curriculum for students from kindergarten to 12th grade by incorporating historical and contemporary Mexican American contributions into coursework and classroom studies.
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
John Huppenthal succeeded Horne 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
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,
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
Here, the district сourt 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, 2013 WL 871892, at *3 (D.Ariz. Mar. 8, 2013). We have held, however, that despite the court‘s power to grant summary judgment sua sponte, it is generally inappropriate for a court to issue such a final judgment on the merits of a claim at the preliminary injunction stage, because it is unlikely that the merits of a claim will be fully ventilated at the early stage of a litigation at which a preliminary injunction is normally addressed. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). We see no exception here. A party is not required to prove her case in full on preliminary injunction, but only such portions as will enable her to obtain the injunction. Here, the district court, by not offering plaintiffs notice of its intent to convert the preliminary injunction motion into basis for grant of summary judgment, deprived plaintiffs of the opportunity to submit additional evidence and argument on the merits of their equal protection claim.
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 therе 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 passage 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
We reach this conclusion even though we agree with the district court that the statute is not discriminatory on its face. Plaintiffs argue that
Even if
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 violate
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, 682 F.2d 1055, 1064, 1066 (4th Cir.1982). Here, the legislative history of
During hearings regarding H.B. 2281, which was later codified as
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. Consideration of the administrative history also impacts evaluation of the second, third, and fourth Arlington Heights factors (the historical background of the decision, the specific sequence of events leading to the challenged action, and the defendants’ departures from normal procedures or substantive conclusions). Indeed, the legislative and administrative history are closely intertwined.
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
On December 30, 2010, the day before
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
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
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 gеnuine issue of material fact as to whether the enactment and/or enforcement of
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
Defendants argue that we should apply our holding in Downs v. L.A. Unified School District, 228 F.3d 1003 (9th Cir.2000), and the Fifth Circuit‘s holding in Chiras v. Miller, 432 F.3d 606 (5th Cir.2005), both of which restricted speech in a school setting because the schools’ actions were considered government speech and were therefore immune from a forum or viewpoint-discrimination analysis. See Downs, 228 F.3d at 1016-17; Chiras, 432 F.3d at 612-17. However, neither of these holdings involved a student‘s First Amendment rights, and are accordingly inapplicable to the instant case. In Downs, we held that material that a teacher posted on a school bulletin board was government speech, and therefore the teacher had no First Amendment right to challenge regulation of that material. Downs, 228 F.3d at 1005, 1011. In Chiras, the Fifth Circuit applied a government speech analysis to an author‘s claim that the state‘s rejection of his textbook for inclusion in the classroom violated his First Amendment rights. Chiras, 432 F.3d at 607, 618. In that context, Chiras held that the selection of textbooks and development of curriculum was government speech and did not create a public forum in which the author could assert a First Amendment right. Id. at 618. However, the court engaged in an entirely separate analysis (discussed below) with regard to the other plaintiff, a high school student. Id. at 618 (“The conclusion that no forum exists in this case does not necessarily preclude” the student‘s First Amendment claim.). Accordingly, we find that the holdings in Downs and Chiras, at least with respect to their government speech analyses, are distinguishable from the instant case.
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, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); Pico, 457 U.S at 866, 102 S.Ct. 2799. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and, yet, these rights must be applied “in light of the special characteristics of the school environment.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
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 havе 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, 862 F.2d 1517, 1522 (11th Cir.1989), the Eleventh Circuit applied the standard set forth by the Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562. In Kuhlmeier, the Court held that a school could exercise editorial control over a student newspaper, which was found to be part of the curriculum, 484 U.S. at 271, 108 S.Ct. 562, “so long as [the
The Seventh and Fifth Circuits give the government greater scope in curtailing school curricula. In Zykan v. Warsaw Community School Corporation, 631 F.2d 1300 (7th Cir.1980), the Seventh Circuit found that “nothing in the Constitution permits the courts to interfere with local educational discretion until local authorities begin to substitute rigid and exclusive indoctrination for the mere exercise of their prerogative to make pedagogiс choices regarding matters of legitimate dispute.” Id. at 1306. The Fifth Circuit in Chiras limited a student‘s right to receive information to materials available in the school library, but stated arguendo that if the decision in Pico did apply in the context of curricular decisionmaking, the state‘s discretion was limited only if motivated by “narrowly partisan or political” considerations. 432 F.3d at 619-20 (quoting Pico, 457 U.S. at 870-71, 102 S.Ct. 2799).
Here, the district court followed the Eleventh Circuit‘s decision in Virgil, 862 F.2d 1517, and applied the Supreme Court‘s Kuhlmeier test to plaintiffs’ First Amendment claims. Though the facts in Kuhlmeier are somewhat distinct from this case in that it involved students’ right to speak as opposed to right to receive, we agree with the district court that Kuhlmeier‘s reasoning can be read to establish that state limitations on school curricula that restrict a student‘s access to materials otherwise available may be upheld only where they are reasonably related to legitimate pedagogical concerns—especially in a context such as this, where the local school board has already determined that the material at issue adds value to its local school curriculum. Granting wider discretion has the potential to substantially hinder a student‘s ability to develop the individualized insight and experience needed to meaningfully exercise her rights of speech, press, and political freedom. Pico, 457 U.S. at 867, 102 S.Ct. 2799. Accordingly, we adopt the standard employed by the district court and hold that the state may not remove materials otherwise available in a local classroom unless its actions are reasonably related to legitimate pedagogical concerns. Kuhlmeier, 484 U.S. at 273, 108 S.Ct. 562.8
The first step in an overbreadth 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, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)). Using Arizona‘s own rules of statutory construction of its statutes, we look to the statute as a whole, and, where the language of the statute is clear and unambiguous, we will not look beyond that language but will assume the legislature means what it says. Arizona Dep‘t of Revenue v. Action Marine, Inc., 218 Ariz. 141, 181 P.3d 188, 190 (2008); TDB Tucson Grp., L.L.C. v. City of Tucson, 228 Ariz. 120, 263 P.3d 669, 672 (Ariz.Ct.App.2011).9
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.
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
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.10 As the district court found: “[T]he word ‘promote’ takes on a more intentional and active meaning in this context. In this way, a given class discussion could incidentally promote resentment, but to say that a course designed to teach about the op-
pression of Mexican-Americans is automatically a class that ‘promotes resentment toward a race’ would stretch the plain meaning of ‘promote’ too far.” Acosta, 2013 WL 871892, at *9.
The exceptions to the statute also 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 opprеssion of a particular group of people based on ethnicity, race, or class.”
Skipping ahead to subsection
The only provision the district court found to be unconstitutionally overbroad in the sense we have been discussing is
Turning next to plaintiffs’ other First Amendment challenge to
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, 570 U.S. 693, 133 S.Ct. 2652, 2662, 186 L.Ed.2d 768 (2013). They base this position on three arguments: (1) that plaintiffs cannot challenge the statute facially, because they have failed to show that the law is unconstitutional in every application, see Schwartzmiller v. Gardner, 752 F.2d 1341, 1346-47 (9th Cir.1984); (2) that plaintiffs cannot challenge it as applied to them, because the statute targets the conduct of school districts and charter schools, not individuals, see United States v. Backlund, 689 F.3d 986, 997 (9th Cir.2012); and (3) that plaintiffs have not identified any liberty or property interest that is protected by the Constitution and implicated by the challenged statute, see Engquist v. Or. Dep‘t of Agric., 478 F.3d 985, 996 (9th Cir.2007).
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, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Maldonado v. Morales, 556 F.3d 1037 (9th Cir.2009). In Hynes, a local ordinance required anyone canvassing or calling house-to-house for a charitable or political purpose to give advanced notice to the local police. 425 U.S. at 611, 96 S.Ct. 1755. The Supreme Court found that three registered voters could pursue a due process vagueness claim challenging the ordinance, even though they were not the individuals directly targeted by the statute. The Court found “[the voters‘] right to receive information would be infringed because persons canvassing for politiсal causes would be uncertain whether the ordinance covered them.” Id. at 620, 621 n. 5, 96 S.Ct. 1755. We reached a similar outcome in Maldonado, where we recognized that “[a]lthough plaintiffs are generally limited to enforcing their own rights,” standing is broader where a plaintiff‘s First Amendment rights are implicated. See 556 F.3d at 1044. “[A] plaintiff alleging that a statute is void for vagueness and overbreadth resulting in a chilling effect on speech has standing even if the law is constitutional as applied to him.” Id. There, the plaintiff alleged constitutional challenges to a California statute that bars offsite commercial advertising on billboards along a landscaped freeway. Id. at 1040. The plaintiff had been cited numerous times for using a billboard on his property for offsite commercial advertising, and his lawsuit challenged both provisions of the statute that applied to him and provisions that did not. Id. at 1044. We found that he had stand-
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, 329 F.3d 692, 696-97 (9th Cir.2003). In Krug, we held that a prison inmate had “a liberty interest in the receipt of his subscription mailings sufficient to trigger procedural due procеss guarantees,” and that this liberty interest was rooted in the inmate‘s First Amendment rights. Krug, 329 F.3d at 696-97. Similarly here, if the statute is found to be vague on its face, or as applied to TUSD‘s MAS program, it will have a direct impact on plaintiffs’ right to receive information. Accordingly, we find that plaintiffs have standing to challenge
A statute is impermissibly vague if it “fails to provide a reasonable opportunity to know what conduct is prohibited, or is so indefinite as to allow arbitrary and discriminatory enforcement.” United States v. Mincoff, 574 F.3d 1186, 1201 (9th Cir.2009). Plaintiffs argue that the phrases “resentment toward a race or class of people,”
We agree. Due process “does not require ‘impossible standards’ of clarity.” Kolender v. Lawson, 461 U.S. 352, 361, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (quoting United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947)). For many of the sаme reasons discussed in the overbreadth analysis above, and in light of the statute‘s purpose to reduce racism in schools, see
Plaintiffs primarily rely on the case of Tucson Woman‘s Clinic v. Eden, 379 F.3d 531 (9th Cir.2004), where we held that a requirement that physicians treat patients “with consideration, respect, and full recognition of the patient‘s dignity and individuality” was vague in violation of due process, because the terms “consideration,” “respect,” “dignity,” and “individuality” had widely varying meanings to different people. Id. at 554-55.12 Unlike in Tucson Woman‘s, however, we do not find that the challenged phrases have widely varying meanings—especially in the context of the entire statute. Thus, the phrase “promotes resentment toward a
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
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
affirm the district court‘s decision that
In sum, we affirm the district court‘s rulings that
AFFIRMED in part, REVERSED in part, and REMANDED.
CLIFTON, Circuit Judge, 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
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
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 cоurt‘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 opinion.