by Kyle Todd
Third Year Law Student
Passed with the intent of destroying the Tucson Unified School District’s (TUSD’s) Mexican-American Studies (MAS) program, Arizona’s HB 2281 prohibits Arizona public and charter schools from offering courses “designed primarily for pupils of a particular ethnic group” or which “advocate ethnic solidarity instead of the treatment of pupils as individuals.”
The law has immeasurable implications not only for Latino students in Arizona, who constitute nearly half of the State’s pupils, but for all education and racial justice advocates as well. What follows is a synopsis of the HB 2281 fight, from its roots in Arizona’s vitriolic political atmosphere, to the legal challenges which have aimed to halt its implementation, to activism which may just provide hope for ethnic studies advocates everywhere.
Arizona: A Breeding Ground for Hate
Understanding Arizona’s own brand of hateful politics helps us to uncover the political circumstances that led to Governor Jan Brewer signing HB 2281 into law.
Let’s begin in the 1992, when Arizona became the last state to celebrate Martin Luther King Jr. Day. That year, lawmakers finally caved to global pressure from musicians, civil rights activists, and even the NFL. 1997 saw the shooting of a Democratic county supervisor by a vengeful conservative activist. The Phoenix New Times was caught red-handed as it laughed at and celebrated the shooting.
Then came the new millennium. 2003 saw an Arizona militiaman convicted of soliciting to pay for the murder of a federal judge. And 2007 saw Maricopa County, Arizona’s Joe Arpaio and CNN’s Lou Dobbs agree on air that it was “an honor” to be affiliated with the KKK.
After Obama’s election in 2009, the political vitriol only intensified. The president had his life threatened at an Arizona Tea Party rally. Around the same time, bands of white supremacists could be seen stalking day laborers around the state. And, that summer, a cowardly group of Minutemen murdered 9-year-old immigrant Brisenia Flores and her father Raul in cold blood.
Also in 2009, John Roll, the federal judge later assigned to hear the federal case brought against HB 2281, was threatened extensively by anti-immigrant activists. As a result, U.S. Marshalls were assigned to provide day-and-night protection for Roll. In 2011, gunman Jared Lee Loughner would shoot down Roll, killing him and six others, as well as causing permanent brain damage to Democratic U.S. Representative Gabrielle Giffords. National controversy ensued when it was uncovered that former U.S. Vice-Presidential candidate Sarah Palin had created a map with crosshairs on Giffords and other Democrats targeted for election defeat. For his own part, Gifford’s political opponent Jesse Kelly had staged a “Get on Target” gun-shooting rally just six months before the shooting.
In the late-Spring of 2010 when SB 1070 and HB 2281 were passed within a few weeks of each other, folks outside of Arizona, including people of conscious around the world, were outraged. For those following Arizona politics, these laws were but two new cogs in the state’s political hate machine.
The Passage of HB 2281 and Early Legal Developments
Passed on April 11, 2010, HB 2281 (Arizona Revised Statutes (ARS) §§ 15-111 and 15-112, as enacted but hereafter continually referred to as “HB 2281”) was a brainchild of a man named Tom Horne. Horne, then Arizona’s superintendent of public instruction, admitted that HB 2281 was the culmination of a long vendetta against the TUSD’s MAS program. Prior to the law, Horne had already attempted to ban the MAS program by way of a Homeland Security bill.
Immediately after HB 2281 passed, the president of TUSD’s governing board indicated the district had no intention of ending the MAS program. The MAS program itself was supported by a court-ordered desegregation budget and for years was seen as a mainstream program for creating Latino equal access to educational opportunities. This is because it has consistently been credited with gains like higher graduation and college attendance rates for Latino and non-Latino students alike.
In October 2010, eleven ethnic studies teachers filed a lawsuit challenging HB 2281. The suit asserted both that their classes were not out of compliance with the law, and that the law itself is unconstitutional.
On December 30, the TUSD suddenly switched its stance, ordering all employees to comply with the law even while deploring it as unconstitutional.
Then in January 2011, on his last day as Superintendent, Horne himself declared the TUSD MAS program in violation of HB 2281. The declaration was made pursuant to authority to do so granted by the law, and it set of a 60-day clock for TUSD to come into compliance, yet failed to expressly say just how to do so. After Horne was succeeded by John Huppenthal, an adamant supporter of HB 2281, the eleven ethnic studies teacher-plaintiffs issued the TUSD an ultimatum: join us as plaintiffs, or we will name you as defendants.
TUSD Superintendent John Pedicone announced that the district would not join the lawsuit. The TUSD then offered a compromise to make ethnic studies legal as electives, rather than classes fulfilling core requirement classes. The compromise went virtually un-noticed by state education officials. Meanwhile, Superintendent Pedicone continued to denounce TUSD students for engaging in civil disobedience and protest against the law.
In June 2011, Huppenthal issued his own declaration that the TUSD’s MAS program violates HB 2281. He called on the district to end the program within 60 days, or face a 10% reduction in state funding, as authorized by the law. Yet, the very next day, a privately-conducted audit of the MAS program found that it did not violate the law. Interestingly, the audit was ordered by Huppenthal himself. Rather than echo his assertions about MAS, Cambium Learning Group, Inc.’s $110,000 audit found that “no observable evidence was present to suggest that any classroom within Tucson Unified School District is in direct violation of the law.”
Instead, the audit confirmed what prior studies had shown: that those enrolled in MAS did better than their peers on tests and were more likely to graduate high school. “[Student] achievement is due to the sense of pride that develops through their accomplishments with highly effective teachers,” the audit found.