Bad Education

Arizona took a shot at the state's Latino residents last week after a judge ruled that Tucson’s Mexican American Studies (MAS) program violates ARS 15-112, a new Arizona law targeted at ethnic-studies programs in the state.

In response to the decision, state Superintendent of Public Instruction John Huppenthal announced that the Tucson Unified School District (TUSD) must revise or drop its Mexican-American Studies program, appeal the decision, or face a 10 percent cut in state funding.

ARS 15-112 prohibits classes that “promote the overthrow of the United States government, promote resentment toward a race or class of people, are designed primarily for pupils of a particular ethnic group, or advocate ethnic solidarity instead of the treatment of pupils as individuals.” Then-Superintendent of Public Instruction Tom Horne authored the bill in 2010, and it was signed into effect by Governor Jan Brewer. Horne ran a winning campaign for state attorney general that year on the basis of having “ended ethnic studies in Arizona”; Huppenthal, who picked up where Horne left off in June 2011, ran for Horne’s old seat on the same platform.

The good news about last week’s ruling against the MAS program is that the judge who oversaw the case, Lewis D. Kowal, is a state administrative law judge whose rulings have little enforcement power; his decision is, in effect, only a recommendation. Huppenthal had the final say, and since he ran on opposing the MAS program, his decision to abide by the judge’s recommendation is unsurprising.

Now, the only real hope for Tucson’s MAS program lies with the federal courts. Those prospects look fairly good given that the reason the ethnic-studies program exists in Tucson is because TUSD was complying with a 1978 desegregation order resulting from a lawsuit brought by Latino and African American students. Ethnic-studies courses were implemented in 1998 to recruit more minority students to the district and improve overall performance—a goal that was being met according to more than one study on the program.

But in 2009, the desegregation order was lifted by a district court, and TUSD entered "post-unitary status," a somewhat vague designation created by the U.S. Supreme Court. The term signifies that a school has been cleared of racial discrimination in six areas: student assignment, faculty, staff, transportation, extracurricular activities, and facilities.

Two years after the order was lifted, in June 2011, the state of Arizona passed the anti-ethnic-studies bill. The next month, a three-judge panel of the Ninth Circuit Court of Appeals reversed the lower court’s decision to lift the desegregation order. In a separate suit, TUSD teachers and students have charged that this bill is unconstitutional.

Last week, Ninth Circuit Judge Walter Tashima heard testimony to help him decide whether to enjoin ARS 15-112 before he makes a final decision. Let's hope Tashima will take into account the findings of an audit Huppenthal commissioned from Texas-based Cambium Learning, Inc.

The report, which is available online, concludes that "no observable evidence was present to suggest that any classroom within Tucson Unified School District is in direct violation of the law [Arizona Revised Statutes] 15-112(A).” The audit also found that the program improved standardized-testing results, graduation rates, and college-matriculation rates for participating students.

That didn’t stop Huppenthal from implying that he used the study to inform his decision against the MAS program at a press conference in June of last year, when he announced that TUSD and the MAS Department had 60 days to shape up or the district would lose 10 percent of its state funding. He offered no suggestion as to how the department could improve its standing and, according to Phoenix New Times reporter Stephen Lemons:

Huppenthal sat on the report for about a month, and released it only during a very misleading press conference yesterday. Journalists there had no time to read or even browse the 120-page report … and the presser itself did not discuss the report's actual findings. ... And since reporters knew nothing of the actual content of the report, they mostly swallowed what they heard.

A second audit conducted by David Scott, TUSD’s director of accountability and research, also found measurable, positive differences in students enrolled in the MAS program.

“I find that over the last six years, students who complete a Mexican American Studies class during their senior year are more likely to graduate than comparison group seniors,” Scott writes. “The difference in completion rates ranges from 5-11 percent higher.”

The TUSD school board had been waiting on a decision from Huppenthal before making its next move. Now that Huppenthal has found the program in violation of ARS 15-112, the board is expected to ban MAS by a vote of three to two at its next meeting on January 10.

Though MAS activists continue to demand that TUSD appeal Judge Kowal’s decision, they have to wait to see if Judge Tashima will rule in federal court that ARS 15-112 is in violation of the equal-protection clause of the Fourteenth Amendment.

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