I am not a legal expert and I’m not sure if these issues have already been raised by the MAS Plaintiffs, but I’ll give it a go anyways. In Thomas Horne’s reply in support of John Huppenthal’s cross-motion for summary judgment he contends that A.R.S. 15-112 is not selectively applied to the Mexican American Studies program, “Plaintiffs’ argument that the law is vague as-applied because it allegedly is being enforced in a discriminatory or arbitrary manner has no support in fact or law” http://www.scribd.com/doc/85643398/Tom-Horne-vs-MAS-students. This is a fallacious claim and is refuted by Mr. Horne’s own words on numerous occasions (both as Superintendent of Public instruction and Attorney General). For example, the statements he made during the debate that took place at the University of Arizona last year between him and attorney Richard Martinez:

The Ethnic Studies Program in the Tucson Unified School District does just the opposite. It divides students by race. Now I’m fully aware that none of the courses are exclusionary and that you can go into a course if you don’t belong to that race, but the numbers of people not of that race are very small. The courses are predominantly, primarily divided by race. So we have Raza Studies for the Latino kids, we have African American Studies for the African American kids, we have Asian studies for the Asian kids, we have Indian studies for the Native American kids. http://www.youtube.com/watch?v=It0mw_bAhXg

Aside from the fact that he acknowledges “none of the courses are exclusionary,” what we have here is Mr. Horne’s own acknowledgement that the Ethnic Studies program in its entirety violates A.R.S. 15-112. This leads to the question: Why selectively enforce the statute against one program of study even though you are aware of and acknowledge other programs of study within the same school district have the same “violation?” Mr. Horne’s only potential answer is limited to the idea that the Mexican American Studies program in TUSD was the only program that had complaints levied against it. Nowhere in the statute does it state that an investigation or determination of a statutory violation can only take place after a complaint has been filed against the district. The language from the statute in this regard is quite clear:

B. If the state board of education or the superintendent of public instruction determines that a school district or charter school is in violation of subsection A, the state board of education or the superintendent of public instruction shall notify the school district or charter school that it is in violation of subsection A. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/15/00112.htm&Title=15&DocType=ARS

The statute clearly states “If the state board of education or the superintendent of public instruction determines…” and it does not establish any requirement as to how the Superintendent arrives to that determination. Mr. Horne, through his own admission in multiple public appearances, clearly establishes that when he was Arizona Superintendent of Public Instruction he determined there were multiple violations of A.R.S. 15-112 in TUSD, yet he only decided to enforce the law against the Mexican American Studies program. He chose to ignore the violations by the African American Studies and Asian American Studies programs. Again, I’m not a legal expert but I feel like this is an inconsistency that cannot be ignored.

Another contention of Mr. Horne’s is, “the Plaintiffs provide no facts to rebut the presumption that the Superintendent is not honestly enforcing the law with integrity” http://www.scribd.com/doc/85643398/Tom-Horne-vs-MAS-students. Superintendent Huppenthal’s intent is irrelevant and the only test that matters is whether the application of the enforcement of A.R.S. 15-112 is discriminatory. This is clear in Hernandez v. Texas 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) which establishes:

Circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period. But it taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner. The judgment of conviction must be reversed.

The question is not intent it is whether the “result bespeaks discrimination” and that is exactly what we have in this case.

There are many inconsistencies both legal and logical in Mr. Horne’s reply which I will try to get to in follow-up posts. For example, he argues that the statute “does not prohibit the discussion of anything“ http://www.scribd.com/doc/85643398/Tom-Horne-vs-MAS-students, yet he frequently refers to curricular materials and textbooks as evidence of violations. If the statute does not prohibit the discussion of anything then why are these materials being singled out as violations? Why is it okay, according to Mr. Huppenthal, to use Mein Kampf as an instructional tool, which obviously “promulgate[s] racial stereotypes?” Why was the only possible way to come into compliance to completely eliminate the program?

Finally I’m most confused about Mr. Horne’s language when he discusses, “the fundamental American principle of treating people as individuals, on their individual merit, rather than on the basis of the race they were born into” http://www.scribd.com/doc/85643398/Tom-Horne-vs-MAS-students. A major part of the history of this country is that it was built on slave labor, and the last time I checked, whether you were a slave or not was determined by your race. How is that a “fundamental American principle?”

What exactly was Mr. Horne doing in 1963 when he joined the Civil Rights Movement in the March on Washington? What exactly was he fighting and marching for? The Civil Rights Movement was based on the discrimination of distinct classes of people based solely on their race. Was that fundamental American principle in action there? How ironic is it that Mr. Horne has an issue with the idea that, “a white power structure conspired to suppress them and relegate them to a second-class existence while in Letter from Birmingham Jail Dr. King states, “It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city’s white power structure left the Negro community with no alternative.”

What argument or legal alchemy does he have to address this?

Today’s article in the Arizona Daily Star is part of an important discussion that should take place, but there is some information the article leaves out the public needs to know:

1. The article never mentions what the specific policy is. I am of the opinion information of this sort is important for the public to know if they are going to form an opinion as to whether the policy is good or bad.

2. The only real outside source the article uses is The Goldwater Institute. Why weren’t any lawyers or other educational experts consulted? Should the reporters have talked to the AEA as well?

3. TUSD policy and the policy of all school districts in the state in this area are created by state law (ARS 15-539) and every school district in the state uses the same law for hiring and firing teachers. The suggestion that this is a uniquely TUSD policy is unfair to the district. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/15/00539.htm&Title=15&DocType=ARS

4. There are basically two ways to fire a teacher: one is for “unprofessional conduct,” and the other is for “inadequate classroom performance.” This is a critically important distinction to make.

Firing someone for “inadequate classroom performance” means firing them for not being good at their job, but they have not done anything morally wrong. For example, this might be a person who is extremely dedicated to what they do and is great with kids, but they just aren’t very knowledgable in the subject area they are teaching and kids aren’t learning. This requires a specific process (also defined by state law ARS 15-539) that involves a variety of things a district has to go through before they can officially dismiss the individual. For example, it requires a the charges be based on a legitimate evaluation of the teacher and the teacher is given an opportunity to improve their practice before being dismissed.

Firing someone for “unprofessional conduct” is a completely different and does not require a lengthy or convoluted process to get that individual out of the classroom or school. Unprofessional conduct is what I would consider all of the acts described in the Arizona Daily Star story (it should be noted that there are differing opinions, which have been established by the courts, as to what constitutes unprofessional conduct). All it requires is an administrator to act:

15-539. Dismissal of certificated teacher; due process; written charges; notice; hearing on request

A. On a written statement of charges presented by the superintendent, charging that there exists cause for the suspension without pay for a period of time greater than ten school days or dismissal of a certificated teacher of the district, the governing board, except as otherwise provided in this article, shall give notice to the teacher of its intention to suspend without pay or dismiss the teacher at the expiration of ten days from the date of the service of the notice.

B. Whenever the superintendent presents a statement of charges wherein the alleged cause for dismissal constitutes immoral or unprofessional conduct, the governing board may adopt a resolution that a complaint be filed with the department of education. Pending disciplinary action by the state board of education, the certificated teacher may be reassigned by the superintendent or placed on administrative leave by the board pursuant to section 15-540.

So basically what happens based on state law is:

Step one: administrator conducts an investigation of the alleged offense (decides it is a violation), writes up a statement of charges, and places the employee on leave immediately. That gets the person out of the classroom/school right away.

Step two: The employee can choose whether or not to request a hearing regarding the charges and they have ten days to do this. If they request a hearing that process does take place, but the employee remains out of the classroom while it is going on. It is also a pretty expeditious process in these circumstances.

Step three: After the hearing takes place (if the employee requests it) then the governing board, based on the evidence, chooses what disciplinary action to take.

So how is this important in regards to The Daily Star’s story? First and foremost, this has less to do with what the policy is as opposed to the appropriate implementation of the policy. TUSD is being somewhat painted as the creators of bad policy when this is a policy that was created by state legislators. The representative of the Goldwater Institute says that the policy (remember it’s state policy not TUSD policy) creates a system where the individuals who act heinously are left in the classroom the whole time. This is not true and it’s where the distinction between charges of “inadequate classroom performance” and “unprofessional conduct” is extremely important.

Teachers charged with “inadequate classroom performance” do stay in the classroom (the wisdom of which is fair to argue), but teachers charged with “unprofessional conduct” can and should be removed from the classroom/school immediately. The final part–in defense of the policy–is that there is a mechanism for due process. Those who are accused of heinous acts can be removed from the classroom, but a process exists that allows them to defend themselves against arbitrary and unjust accusations/prosecution. It is possible someone could be wrongly accused. This is a tradition that is deeply rooted in the American tradition and in The Constitution.

I don’t think any of the stories described should have resulted in any of these individuals being allowed to return to the school. It is, however, important to understand the complexity of how this system works and where to place criticism so together we can move in a direction that is in the best interest of students.

The last thing I’ll mention is that one of the issues I have with the article is that it contributes to a pattern of discourse in education that vilifies the teaching profession (and our school district) in general. TUSD is a good school district with good people who have dedicated their lives to public service.

On a side note, I think Professor Yehling would be proud of what I just wrote. If you happen to read this: Thanks!!!

History repeats itself–especially when lessons are ignored or suppressed from being taught. It is not difficult to see. There have been some prior comparisons of the current civil rights struggle for the preservation of Mexican American Studies and Letter from Birmingham Jail. It is an appropriate comparison and needs to be taken a step further. Dr. Stegeman’s actions regarding this issue are the moral and intellectual equivalent of the arguments that were made by the eight Birmingham, Alabama clergymen in response to the civil rights actions taking place at the time.

The Historical Context

It needs to be emphasized that Dr. King’s letter was written as a direct reply to the “A Call for Unity” statement issued. The clergymen called for an end to the protest actions and that the courts were the appropriate venue to deal with the “racial issues in our area.” They said that Dr. King and the Southern Christian Leadership Conference were outside agitators who had no place in even being there. According to them it was the protestors who were creating conditions that could incite violence and they even commended the police, who were severely abusive, for the “calm manner” they handled the situation with. Although they attempted to sympathize with the movement by recognizing “the natural impatience of people who feel that their hopes are slow in being realized.” The following sums up their argument:

We further strongly urge our own Negro community to withdraw support from these demonstrations, and to unite locally in working peacefully for a better Birmingham. When rights are consistently denied, a cause should be pressed in the courts and in negotiations among local leaders, and not in the streets. We appeal to both our white and Negro citizenry to observe the principles of law and order and common sense. http://www.stanford.edu/group/King//frequentdocs/clergy.pdf 

Basically the argument was: We know your god-given human rights are being violated, we know that fairness does not even exist in the courts, but we want you to keep quiet about it anyways.  Sounds familiar right? Just replace the words “Negro” and “Birmingham” with Mexican American and Tucson and you’re good to go. This line of thought is pervasive in Dr. Stegeman’s writing on his proposal to turn some of the courses into electives:

The remarkable aspect of the proposal (setting aside the debate on its merits) is that it triggered political convulsions wildly out of proportion to its content. Those convulsions originated partly in Tucson’s history of overt discrimination and the decades-long struggle to end it. TUSD’s desegregation court orders are a painful part of that history. The current ethnic tensions in Arizona have unfortunately helped to reopen these historical wounds.

It is important, however, to recognize the distinction between free speech and stifling others’ speech. In a democracy, those who spread misinformation, harass and vilify opponents, and aggressively disrupt public meetings should not determine the final outcome. Oversimplified rhetoric inflames emotions by pretending that any disagreement about Mexican-American Studies is a struggle about the general rights and status of Latinos. http://azstarnet.com/news/opinion/both-sides-must-listen-share-views-in-ethnic-studies-debate/article_93998eff-0318-5d85-8f0a-09dfdf1f9aa6.html

I think Dr. King would have a response for this and the “oversimplified” rhetoric of the civil rights movement:

You may well ask, “Why direct action, why sit-ins, marches, and so forth? Isn’t negotiation a better path?” You are exactly right in your call for negotiation. Indeed, this is the purpose of direct action. Nonviolent direct action seeks to create such a crisis and establish such creative tension that a community that has consistently refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. I just referred to the creation of tension as a part of the work of the nonviolent resister. This may sound rather shocking. But I must confess that I am not afraid of the word “tension.” I have earnestly worked and preached against violent tension, but there is a type of constructive nonviolent tension that is necessary for growth. http://www.stanford.edu/group/King//frequentdocs/clergy.pdf 

HB 2281 (ARS 15-112) is not a “bad law.” It is an unjust law.

Something about the discourse regarding this issue has bothered me recently. People keep calling ARS 15-112 a “bad law.” (Both Raul and Adelita Grjalva have done this, as has Dr. Stegeman). I think it needs to be stressed that it is not a bad law. ARS 15-112 is an unjust and immoral law “on its face and in its application.” This law is an abuse of power by the state that was created with the sole purpose of political retaliation through the elimination of the MAS program in TUSD. This is a fact that is not difficult to prove. It took place and we all saw it happen.

There are many other courses both inside TUSD and in other districts that “violate” this law and no other program has been, or will be targeted by the state. For example, there is a school (a great school in my opinion) called Paolo Freire Freedom School. The same evil Paolo Freire who taught the poor and illiterate in rural Brazil has an entire school named after him in Tucson and their stated focus is social justice? Why haven’t they been targeted by the state?

There are plenty of other examples but I think it illustrates the point. Here we have another similarity with Letter from Birmingham Jail:

…there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that “An unjust law is no law at all.”

Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just.  http://www.stanford.edu/group/King//frequentdocs/birmingham.pdf

This is a fundamental problem with Dr. Stegeman’s approach to the issue. Even though he is willing to admit the law is “a bad law” (there’s that word choice again) he is unwilling to fight it and comes up with rationalization after rationalization for why we shouldn’t. For example, he argues that even if the district won on appeal we would probably lose later on because the state might just write another similar law. That’s right. Let’s not bother standing up for the rights of our students and community because it’s possible that they might try it again. He’s also arguing that even though the program is proven to be successful and is changing the lives of our students for the better, it just isn’t quite successful enough to be worth keeping. How many students should a program be required to have for it to be considered legitimate?

What Dr. Stegeman doesn’t understand is that we have a moral obligation to stand up against injustices that are being perpetrated against our community. This is a matter of principle, not a tactical or cost-benefit calculation. There is no choice but to stand up against injustice because it is the right thing to do. The center of the injustice in this lies in the hands of John Huppenthal, Tom Horne, and this law that was passed, and we all have an interest in that, as Dr. King correctly says, “injustice anywhere is a threat to justice everywhere.” The prospect of the legislature potentially attacking the community again simply means being ready to stand up for what is right again. The fundamental misunderstanding of the root of this issue is a huge part of the problem and parallels Dr. King’s letter as well:

You deplore the demonstrations that are presently taking place in Birmingham. But I am sorry that your statement did not express a similar concern for the conditions that brought the demonstrations into being. I am sure that each of you would want to go beyond the superficial social analyst who looks merely at effects and does not grapple with underlying causes. I would not hesitate to say that it is unfortunate that so-called demonstrations are taking place in Birmingham at this time, but I would say in more emphatic terms that it is even more unfortunate that the white power structure of this city left the Negro community with no other alternative.http://www.stanford.edu/group/King//frequentdocs/birmingham.pdf

On Critical Race Theory and Social Justice

Largely these claims are based out of fear of something unknown. Critical and social justice theories are analytical lenses used to look at issues in society in different ways. They are not tools to indoctrinate and radicalize students. In fact, Dr. King was both a social justice advocate and used critical race theory:

I had hoped that the white moderate would see this. Maybe I was too optimistic. Maybe I expected too much. I guess I should have realized that few members of a race that has oppressed another race can understand or appreciate the deep groans and passionate yearnings of those that have been oppressed, and still fewer have the vision to see that injustice must be rotted out by, strong, persistent, and determined action. I am thankful, however, that some of our white brothers have grasped the meaning of this social revolution and committed themselves to it. They are still all too small in quantity, but great in quality.http://www.stanford.edu/group/King//frequentdocs/birmingham.pdf

Does this statement promote racial resentment? Does it observe issues of injustice and oppression from a racial lens? Should it be banned from curriculum? What about his earlier statement when he discusses “the white power structure” in Birmingham?

On the Call for Moderation:

Dr. Stegeman is calling for moderation from both sides although he is really only speaking to one side of the issue–those fighting for the MAS program. This isn’t a terrible thing to call for and I think Dr. Stegeman’s heart is in the right place, but again this is an issue of principle. Dr. King also speaks of the moderate:

First, I must confess that over the last few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the White Citizens Councillor or the Ku Klux Klanner but the white moderate who is more devoted to order than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says, “I agree with you in the goal you seek, but I can’t agree with your methods of direct action”; who paternalistically feels that he can set the timetable for another man’s freedom; who lives by the myth of time; and who constantly advises the Negro to wait until a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection. http://www.stanford.edu/group/King//frequentdocs/birmingham.pdf

Moving Forward

Ultimately I agree with Dr. Stegeman. Community support is necessary and people need to start working to gather, but that can never happen on an authentic level if it means supporting an unjust and immoral action that has been perpetrated against that community. You don’t build consensus around injustice. In a sense, what Tom Horne and John Huppenthal have done is brilliant. They have managed to turn the TUSD community against itself and deflect all real attention from the true injustice that has taken place–ARS 15-112. To me, the only way the community can truly come together as one is if its school board chooses to stand up against the abuse and injustice that is being continually directed at it from Phoenix. It is never too late to do the right thing.