By: Corinne Merdegia

In the age of politicians and public officials promoting discriminatory rhetoric on and off the campaign trail, later winning their elections without facing recourse for their actions, and while in office, pass seemingly neutral laws that actually disproportionately disadvantage certain groups, a question looms above the fold: How much weight should a public figure’s inflammatory comments be given when analyzing the intent behind the passage of a law or policy?


Courts seem to shy away from personal statements on and off the campaign trail and rather, focus entirely on the plain language of the controversial policy and proponents’ official statements. However, a recent ruling by the 9th Circuit to overturn the termination of an Arizona ethnic studies program marks a shift towards placing more weight on unofficial statements made by policy proponents in determining racial animus behind government decisions.


González v. Douglas

On August 22, 2017, Judge A. Wallace Tashima of the Ninth Circuit ruled in González v. Douglas that Arizona school officials were motivated by racial animus when they enforced a statute specifically targeting the Mexican-American studies (“MAS”) program in the Tucson Unified School District (“TUSD”). Plaintiffs, which included affected students and teachers, claimed that the enactment and enforcement of A.R.S. §15-112 violated their rights protected by the First and Fourteenth Amendments. Ultimately, the Court’s decision relied upon inflammatory online comments made by then Arizona Superintendent of Public Instruction and former Arizona State Senator John Huppenthal.


A.R.S. §15-112 banned Arizona public and charter schools from offering courses that “are designed primarily for pupils of a particular ethnic group”, “advocate ethnic solidarity instead of the treatment of pupils as individuals,” and “promote the overthrow of the United States government.” On its face, A.R.S. §15-112 appears somewhat reasonable, but the legislative history behind the its passage revealed a darker intent.


Proponents of the statute, spearheaded by former Arizona Superintendents Tom Horne and John Huppenthal, specifically targeted and only enforced the statute on TUSD’s MAS program.


What is the MAS Program?

TUSD’s MAS program was implemented as a remedial measure to facilitate desegregation in Tucson’s education system.


The MAS program included art, government, history, and literature courses from kindergarten to 12th grade focusing on historical and contemporary Mexican-American contributions. The primary objectives were to “engage Mexican-American students by helping them see “themselves or their family or their community” in their studies and close the gap in academic achievement between Mexican-American and white students in Tucson. Participation in the program was voluntary and available to all students, not only for those who identify as Mexican-American. Nonetheless, 90% of the program participants identified as Latino. Over the years, TUSD tracked the academic achievement of MAS students and found that students “surpassed and outperformed similarly situated peers.”


A.R.S. §15-112’s Roots

Since its inception, the MAS program garnered criticism from officials within the Arizona Department of Education. However, the impetus that drove the passage of A.R.S. §15-112 can be traced to a speech made by Dolores Huerta, a Latina labor leader and civil rights activist, who was invited by Tucson High School in 2006. In her speech, Huerta announced that, “Republicans hate Latinos.”


Angered by Huerta’s remarks, Superintendent Horne scheduled a speech for his Deputy Superintendent Margaret Garcia Dugan at the same high school in the following weeks. He hoped the students would regard Dugan as a role model who is both a Republican and a Latina. During the question and answer period of Dugan’s event, several students in attendance protested by “taping their mouths, turning their backs, raising their fists, and walking out of the auditorium.”


Without confirming whether the protesting students were enrolled in the MAS program, Horne concluded that the protest was organized by teachers in the MAS program. Horne wrote in his “Open Letter to the Citizens of Tucson” that a group of “La Raza Studies students” treated Dugan rudely and that “the students learned this rudeness from their Raza teachers.” He called for the termination of the MAS program.


It is important to note that Horne has never attended or observed a single MAS class or consulted with students or teachers enrolled in the program.


Horne’s Campaign Against MAS and the Passage of H.B. 2281/ A.R.S. §15-112

TUSD did not accept Horne’s recommendation to terminate the MAS program. Not curtailed by the rejection, Horne lobbied for state-wide legislation to eliminate the MAS program. He garnered the support of Arizona State Senators, who introduced Senate Bills 1108 and 1069, which sought to prohibit courses that “promote any political, religious, ideological, or cultural beliefs that denigrate or overtly encourage dissent from the values of American democracy and western civilization.” Both bills failed.


However, Horne found success in House Bill 2281, with involved individuals confirming that the MAS program was the primary target of the bill. While speaking before the Arizona legislature, Horne asserted that, “Raza studies for the Raza kids, Native American studies for the Native American kids, [and] oriental studies for the oriental kids was just like the Old South.” Horne also asserted that the MAS program incorporated textbooks that advocated a “well-known Brazilian communist” and cultivated an environment that discriminated against white students. While on the campaign trail for Attorney General, Horne frequently referred to his “crusade to destroy the entire MAS program.”


After H.B. 2281 passed in the House, Horne enlisted the help of Arizona State Senator Huppenthal, who promoted the bill by investing $40,000 in radio commercials that called to “stop La Raza.”


On May 11, 2010, Arizona Senate passed H.B. 2281, which is now codified as A.R.S. §15-112. The statute did not go into effect until January 1, 2011.


Shortly after the statute’s passage, auditors tasked by Senator Huppenthal to review the MAS program found “no observable evidence was present to indicate that any classroom within Tucson Unified School District is in direct violation of the law, A.R.S. § 15-112(A).” Instead, they observed that MAS was closing the achievement gap and cited standardized test passage rates and higher graduation rates for MAS students.


Huppenthal Posts Inflammatory Comments on Political Blogs

In the period before the statute went into effect, Huppenthal posted inflammatory comments under two pseudonyms on political blogs.


On December 14, 2010, he posted, “No Spanish radio stations, no Spanish billboards, no Spanish TV stations, no Spanish newspapers. This is America, speak English.”


The following day, he posted, “The rejection of American values and embracement of the values of Mexico in La Raza classrooms is the rejection of success and embracement of failure.”


On January 4, 2011, Huppenthal posted, “La Raza means ‘The Race.’ It doesn’t mean the Mexican race, unless you use it as a shorthand for that. But it’s also shorthand for classroom studies that depict America’s founding fathers as racists, poisoning students’ attitudes towards America.”


In an undisclosed date, Huppenthal wrote, “The Mexican-American Studies classes use the exact same technique that Hitler used in his rise to power. In Hitler’s case it was the Sudetenland. In the Mexican-American Studies case, it’s Aztlán.


A.R.S. §15-112 enforced against the MAS Program

Despite the findings of the independent auditors, Horne decided on December 30, 2010 that the MAS program was in violation of A.R.S. §15-112 and gave TUSD an ultimatum to eliminate MAS program within 60 days or have 10% of its budget withheld.


Horne and other officials were aware of three other TUSD ethnic studies programs, which are the Asian-American, African-American, and Native American programs. All three of these programs arguably may have been in violation of A.R.S. §15-112, but Horne did not choose to terminate them. Moreover, an official brought Horne to the attention of the Paulo Freire Freedom School, a Tucson charter school allegedly “devoted totally” to the philosophies of Paulo Freire, a noted Brazilian communist. No investigations were made for any of these schools.


Court’s Reliance on Inflammatory Comments

Judge Tashima found that Huppenthal’s blog comments provided the most direct evidence that racial animus affected the decision to enact A.R.S. §15-112. Huppenthal’s comments needed to be scrutinized in a different light because he voted for the bill and was crucial in the passage of the bill.


Huppenthal’s online comments explicitly targeted Mexican-Americans and harbored racial animus against this ethnic group. Although Huppenthal posted the comments after the passage of the bill, the comments give insight to the state senator’s intentions in enacting the policy.


Specifically, Judge Tashima wrote, “the blog comments are more revealing of Huppenthal’s state-of-mind than his public statements because of the guise of anonymity provided Huppenthal with a seeming safe-harbor to speak plainly.” Furthermore, Judge Tashima wrote, “Had Huppenthal, a public official speaking in a public forum on a public issue, felt that his inflammatory statements were appropriate, he would not have hidden his identity.”


Ultimately, the Court found that Arizona public officials were motivated by racial animus in enacting A.R.S. §15-122 against TUSD’s MAS program. “The Court is convinced that decisions regarding the MAS program were motivated by a desire to advance a political agenda by capitalizing on race-based fears.”


Looking to the Future

Although the Court’s decision is unclear as to the Arizona Department of Education’s next steps, Judge Tashima’s ruling provides a precedent in the evaluation of a public official’s racist and discriminatory statements and whether their statements contribute to racial animus behind government decisions.