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Preston C. Green, III, David Brown and Sara Ney

excerpted from Preston C. Green, III, David Brown and Sara Ney, An Analysis of the Constitutionality of Arizona's Ethnic Studies Law , 39 Rutgers Law Record 86 (2011-2012)


On May 2011, the Arizona legislature passed a law that has placed significant restrictions on K-12 ethnic studies programs. The law prohibits any public school district or charter school from conducting classes that, inter alia, are designed primarily for a specific ethnic group. School districts or charter schools that violate the law can lose up to ten percent of their state funding. Former Arizona state superintendent of public instruction Tom Horne championed the passage of this legislation after an incident involving a state department of education official at a Tucson public school. As discussed in Section I of this paper, present superintendent John Huppenthal found that the Mexican American Studies (MAS) program violated the state's ethnic studies law. A state administrative law judge affirmed Huppenthal's determination, authorizing the state's power to withhold ten percent of its funding to the Tucson Unified School District (TUSD) until the MAS program came into compliance with state law. Students and teachers are challenging the constitutionality of the statute in federal district court and seek the issuance of a preliminary injunction.

Arizona's ethnic studies law is significant because of this country's ever-changing racial demographics. The U.S. Census anticipates that current minorities will become the majority in the United States by 2042. By the year 2050, according to projections, 30% of the population will be Hispanic and 15% will be African American. The non-Hispanic white population is projected to drop from 66% in 2008 to 46% in 2040. Other state legislatures may respond to this demographic change by passing laws similar to Arizona's ethnic studies statute. It is also highly likely that teachers and students will challenge these laws in court

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The Arizona ethnic studies law and others like it face many legal challenges. Central to the legal debate over the Arizona law is the question of who controls the school's curriculum and to what extent. This question not only concerns the proper amount of discretion public school officials enjoy in limiting the exposure of their students to certain curricular material but also involves the proper role of the courts in superintending that exercise of discretion. Making curricular decisions is no easy task given the various interests of students, parents, teachers, and government officials. The Arizona law and the Tucson teachers' lawsuit illustrate the tension between the constitutional structures that protect identified individual rights on the one hand and the institutional mechanisms that have developed for educating American children on the other, including the social, political, and academic goals of those who control the schools. This section will survey the applicable legal principles for claims that parents, students, and teachers may raise in light of the Arizona law.