Arce v. Douglas, Nos. 13-15657/13-15760 (9th Cir. Jul. 7, 2015)
Abstract: A U.S. Court of Appeals for the Ninth Circuit three-judge panel has held:
- 15-112(A)(3) of Arizona’s ethnic studies law is overbroad in violation of the First Amendment;
- Neither §§ 15-112(A)(2) nor (A)(4) are overbroad in violation of the First Amendment;
- Neither §§ 15-112(A)(2) nor (A)(4) are vague in violation of the Due Process Clause;
- There were genuine issues of fact regarding whether the enactment and/or enforcement of § 15-112 was motivated at least in part by a discriminatory intent, thus, the panel reversed the district court’s grant of summary judgment and remanded for trial on the equal protection claim; and
- The panel remanded plaintiffs’ First Amendment viewpoint discrimination claim to the district court for further proceedings in accordance with its opinion.
The panel was unanimous in its judgment, except as to remanding the equal protection claim for trial on the merits. The dissenting judge argued that the claim should be remanded for further proceedings without precluding further consideration of summary judgment.
Facts/Issues: Arizona enacted Arizona Revised Statute § 15-112(A), which 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; and (4) Advocate ethnic solidarity instead of the treatment of pupils as individuals.
Pursuant to the law, then-State Superintendent of Public Instruction Tom Horne issued a finding in late 2010 that Tucson Unified School District No. 1 (TUSD) was in violation of § 15-112(A) because of courses offered as part of TUSD’s Mexican American Studies (MAS) program. Horne issued his finding on his last day in office, which was two days before the law took effect. In June 2011, Horne’s successor, John Huppenthal, issued a second finding that TUSD was in “clear violation” of Subsections 15-112(A)(2), (3), and (4), based on his conclusion that the MAS program contained content promoting resentment towards white people, advocated Latino solidarity over the treatment of pupils as individuals, and was primarily designed for Latino pupils. State Superintendent Huppenthal ordered TUSD to bring the MAS program into compliance within sixty days.
TUSD filed an administrative appeal of Huppenthal’s finding. In December 2011, an administrative law judge (ALJ) concluded that the MAS program violated Subsections §§ 15-112(A)(2), (3), and (4). Huppenthal then issued an order accepting the ALJ’s “recommended decision.” While the administrative proceeding was pending, the plaintiffs, which included ten MAS teachers, the Director of the MAS program, and two TUSD students filed suit in federal district court. The teachers’ and director’s claims were dismissed for lack of standing. A former student and his mother were allowed to intervene as plaintiffs.
The plaintiffs filed a motion for summary judgment contending that § 15-112 is (1) unconstitutionally overbroad; (2) facially vague; and (3) vague as applied. They also moved for a preliminary injunction relying on those claims, but also relying on equal protection and substantive due process claims. The defendants filed a motion for summary judgment on all the plaintiffs’ claims.
The district court granted the state’s motion for summary judgment, dismissing the plaintiffs’ claims that Arizona Revised Statute § 15-112, which limits school districts’ ability to provide certain race-related curricula, violates their First Amendment speech rights and Fourteenth Amendment due process and equal protection rights. However, the court found unconstitutional one provision in the statute which prohibited classes designed primarily for students of a particular ethnic group. Nonetheless, it was severable from the other portions of the statute, leaving the bulk of the law intact. The court granted the plaintiffs’ motion for summary judgment in regard to Subsection 15-112(A)(3), finding that provision unconstitutionally overbroad and an infringement upon the right to teach and learn legitimate and objective ethnic studies.
Ruling/Rationale: The Ninth Circuit panel affirmed in part and reversed in part. It remanded the equal protection claim for trial. It began with a discussion of the equal protection claim. It concluded that the district court’s sua sponte grant of summary judgment in the state’s favor at the preliminary injunction stage was inappropriate. It found: “[T]he 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.”
The panel held that “the district court abused its discretion in sua sponte granting summary judgment for defendants on plaintiffs’ equal protection claim.” However, only two of the three members of the panel agreed that there was “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.” As a result, the two judge majority reversed the district court’s grant of summary judgment for defendants and remanded the equal protection claim for trial.
The majority stated it reached the conclusion to remand for trial even though it agreed with the district court that § 15-112 is not facially discriminatory. It pointed out that even if § 15-112 was not facially discriminatory it could “still be unconstitutional if its enactment or the manner in which it was enforced were motivated by a discriminatory purpose.” It then laid out the five factor test articulated by the U.S. Supreme Court in Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1997), for determining whether a defendant acted with discriminatory purpose:
1) the impact of the official action and whether it bears more heavily on one race than another; 2) the historical background of the decision; 3) the specific sequence of events leading to the challenged action; 4) the defendant’s departures from normal procedures or substantive conclusions; and 5) the relevant legislative or administrative history.
Applying the Arlington factors, the majority agreed with the plaintiffs that “there is at least a genuine issue of material fact as to whether the statute was enacted and enforced with discriminatory intent.” Regarding the first factor, it concluded “the enactment and enforcement of § 15-112 has had a disproportionate impact on Mexican American and other Hispanic students.” Jumping to the fifth factor, the majority said, “Here, the legislative history of § 15-112 and the sequence of events (including the administrative history) leading to its enactment reasonably suggest an intent to discriminate.” It pointed out that “[d]uring hearings regarding H.B. 2281, which was later codified as § 15-112, the MAS program was the sole target of the legislative effort.”
The majority also discussed the actions taken by Huppenthal from the time he was in the state legislature through assuming the office of state superintendent of schools and Horne from the time he was state superintendent of schools through assuming the office of state attorney general to eliminate the MAS program at TUSD. It concluded:
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.
The panel then examined the plaintiffs’ First Amendment claims. It rejected the Ninth Circuit decisions cited by the defendants for placing restrictions on circular speech as government speech. It found that neither of cases “involved a student’s First Amendment rights, and are accordingly inapplicable to the instant case.” The panel focused its analysis on “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.” It stressed that the analysis would involve balancing a student’s First Amendment rights and a state’s authority in educational matters.
After review the tests developed by four other circuits (Fifth, Seventh, Eighth, Eleventh) to deal with the breadth of a student’s First Amendment rights in the context of the development of a school curriculum, the panel adopted “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.” The district court followed the Eleventh Circuit’s decision in Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989), and applied the Supreme Court test in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988), to plaintiffs’ First Amendment claims.
Turning to the overbreadth claim, the panel first concluded: “We find nothing in plaintiffs’ occasionally broad rhetoric below that fairly put either the district court or defendants on notice that the entire statute [§ 15-112], either on its face or as applied, was being challenged as a whole on First Amendment overbreadth grounds. Accordingly, the issue is not properly before us here.” Regarding [§ 15-112(A)(2), it agreed 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.” As to § 15-112(A)(4), it also found that provision was not overbroad.
Addressing § 15-112(A)(3), the panel , as had the district court, found the provision was overbroad. It pointed out that “any legitimate purpose this provision could serve is already encompassed by subsections (A)(2) and (A)(4).” It concluded “subsection (A)(3) threatens to 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.”
Moving on to the viewpoint discrimination claim, the panel remanded that claim because “the district court did not even review the evidence with respect to the viewpoint discrimination claim.” Regarding plaintiffs’ claim that § 15-112 is vague in violation of the Fourteenth Amendment Due Process Clause, it said, “For many of the same reasons discussed in the overbreadth analysis above, and in light of the statute’s purpose to reduce racism in schools, see A.R.S. § 15-111, we find that the phrases here in issue sufficiently give notice as to what conduct is prohibited and do not inherently invite arbitrary enforcement.” The panel concluded:
We agree with the district court that the juxtaposition of these phrases is sufficiently clear so that a teacher or school district could tailor its conduct to conform to the statute. For these reasons and the similar reasons in our discussion of the First Amendment overbreadth claims above, we affirm the district court’s holding that subsections (A)(2) and (A)(4) are not vague in violation of the Fourteenth Amendment.
The concurring in part and dissenting in part opinion agreed that the equal protection claim should be remanded. However, the judge disagreed with the majority that the plaintiffs had “presented sufficient evidence to establish that there is a genuine dispute of material fact on that issue.” The judge argued that the majority failed to recognize the difference between “the antipathy toward Tucson’s Mexican American Studies program (“MAS”) with animus toward Mexican Americans more generally.” The opinion found there was no evidence supporting the contention that the motivation for enacting or enforcing the statute was animus against Mexican Americans.
The judge said:
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.
Arce v. Douglas, Nos. 13-15657/13-15760 (9th Cir. Jul. 7, 2015)
[Editor’s Note: In January 2015, Legal Clips summarized an article from the Huffington Post reporting that a three-judge U.S. Court of Appeals for the Ninth Circuit panel heard oral argument in a suit challenging Arizona’s 2010 ethnic studies law. The law prohibits courses that promote the overthrow of the U.S. government, kindle ethnic resentment, foster ethnic solidarity or treat students as members of a group rather than as individuals.]