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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.

A. A State's Right to Control Curriculum

Foundational to any discussion about the legal implications of the ethnic studies law is the principle that state and local governments have the right to control public school curriculum. Schools are tasked with instilling both content knowledge and social values to the nation's youth. The Supreme Court has recognized that a state has an undisputed right to establish the curriculum of its public schools. In public schools, curriculum is adopted either by state law or through local communities and school boards. Because state and local authorities are primarily responsible for public education in the United States, courts generally do not intervene in educational issues unless important constitutional rights are clearly implicated. Recognizing the importance of local control over educational decisions and acknowledging that they may lack expertise in educational matters, judges generally defer to local school authorities in matters of curricular decision-making. Thus, most curriculum debates are resolved in the political branches. However, courts have decided a number of key curriculum disputes such as the legality of courses teaching intelligent design, human sexuality, and religious studies. A public school's control over its curriculum is limited only by the constitutional restraints that govern all governmental entities, such as the Establishment Clause.

Although many educational decisions reflect the social, political, and moral principles of state and local authorities, [t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. Thus, courts will not tolerate laws that cast a pall of orthodoxy over the classroom. The limits of state and local curricular decision-making and the proper legal analysis for challenges to curricular decisions, however, are less clear. In addition to state and local school authorities, many parents, students, and teachers have attempted to influence curricular decisions through a host of legal challenges. However, in spite of these challenges courts have generally upheld state and local curricular decisions.

B. Parental Rights

Parental challenges to public school curriculum are common, particularly with respect to controversial issues such as sex education and religion, and courts have recognized that parents have a constitutional right to control their children's upbringing. However, courts have refused to recognize the right of parents to direct how public schools teach their children.

A line of Supreme Court cases dating back to the 1920s protects the rights of parents to direct the education of their children. The Court recognized that the Fourteenth Amendment's Due Process Clause protects the right of parents to supervise the education and upbringing of their children and to decide whether to send their children to a private or public school. The Fourteenth Amendment, however, does not give parents the unfettered right to veto curriculum decisions of public school boards.

In Meyer v. Nebraska, the Court held that a state law that prohibited teaching foreign languages to any child who had not passed the eighth grade violated parents' and teachers' Fourteenth Amendment liberty interests. The Court concluded that foreign language statutes, aimed at protecting American ideals, exceed a state's police power. The factual background of Meyer is in many ways analogous to the Arizona situation. Nebraska adopted the law during a high immigrant influx. The law's purpose was aimed at integrating ethnic minority groups and preventing the emergence of a multi-lingual society. The Court concluded that the law's legislative purpose, to promote assimilation and civic development, did not justify interfering with the liberty interest of the teacher to contract with parents to teach their children.

In Pierce v. Society of Sisters, the Court held that a state's police power does not permit the state to require students to accept instruction from public school teachers only. The Court struck down an Oregon law that required parents to send their children to the public school in the district where the children resided. The Court based its decision on the Meyer doctrine that a state may not unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of children under their control, absent some reasonable relation to an important state interest.

While Meyer and Pierce protect a parent's right in directing the education of their children, these cases do not give parents the right to participate in curricular decisions outside of the normal political process. The First Circuit, for example, has held that a parent's constitutional right to raise their children does not include the right to restrict what a public school may teach its students. The court noted that even if the school's teachings contradict a parent's religious beliefs, that teaching does not violate a parent's free exercise of religion under the First Amendment. Similarly, the Eighth Circuit has held that parents do not have a substantive due process right to control through the federal courts the information that public schools make available to their children and further noted that school boards, and not the courts, must make curricular decisions.

While parents have a right to control the upbringing of their children, including the right to decide whether to send their children to a public school or to a private school, courts have refused to extend the substantive due process analysis of Meyer and Pierce to include a parental right to control curricular decisions. Thus, courts generally give school districts considerable freedom to shape their curriculums even though parents may disagree with those decisions.

C. Student Rights

Another important issue is whether students may challenge curricular decisions. Such challenges are often brought on First Amendment grounds. While the starting point for students' First Amendment rights in school is Tinker v. Des Moines Independent School District and its progeny, the Tinker substantial disruption test does not provide an adequate framework for student challenges to curricular decisions. Some courts have suggested that students have a First Amendment right to challenge overly narrow or ideological curriculum-related decisions that interfere with students' freedom to hear. These challenges highlight the tension between the rights of students to learn in the marketplace of ideas and the responsibility of school officials to select appropriate content and teaching methods and inculcating basic moral values. In deciding such First Amendment challenges, courts will consider whether the school official's regulation of curriculum content was reasonably related to a legitimate pedagogical concern.

Most student challenges to curricular decisions have involved the removal of controversial books from the school library. For example, in Board of Education v. Pico, a plurality of the Supreme Court held that a local school board could not remove controversial books from its library shelves merely because the Board members disliked material contained in the books. The Court concluded that the Board's action violated a student's right of access to ideas under the First Amendment. However, the Court limited its decision to school cases involving optional reading books in a school library and refused to enter the difficult terrain of a school board's discretion to prescribe the curricula of the school.

Students in the TUSD might argue that because the decision to dissolve the MAS program was based in part on controversial textbooks, the case is analogous to library book cases and should be governed by Pico.However, a recent First Circuit case, Griswold v. Driscoll, demonstrates that courts are unwilling to apply the Pico plurality's notion of non-interference with school libraries as a constitutional basis for limiting the discretion of state authorities to set curriculum. In contrast to library cases like Pico, courts generally hold that students do not have a First Amendment right to challenge classroom curricular decisions unless certain constitutional concerns are clearly implicated, such as issues involving the Establishment Clause. In fact, the Supreme Court has clearly established school administration control over school-sponsored student expression. So strong is the discretion that courts grant to school officials to make sound curricular decisions that the Seventh Circuit has held that student challenges to curricular decisions must cross a relatively high threshold before entering upon the field of a constitutional claim suitable for federal court litigation.

However, some courts have considered students' First Amendment rights through the rubric of censorship in the classroom. In Borger v. Bisciglia, a school district refused to allow high school students to view the film Schindler's List as part of the school's curriculum due to the its R rating. A district policy limited the use of rated commercial films in the classroom to those rated PG-13, PG, and G. One student challenged the district's policy, claiming it violated his rights under the First and Fourteenth Amendment. The court dismissed the claim on summary judgment finding that the law does not support Borger's First Amendment claim.

Noting the abundant discretion that courts give to school officials in constructing curriculum, the court considered whether the district's decision bore a reasonable relationship to a legitimate pedagogical concern. Importantly, the court determined that this was not a case in which the plaintiff alleges that school officials acted pursuant to political ... beliefs. Instead, the student argued the district's reliance on the MPAA rating system in order to exclude a movie from the curriculum was not reasonably related to the legitimate pedagogical concern of preventing students from viewing movies with violence, nudity, and harsh language. The court disagreed and found the district's reliance on the MPAA ratings was a reasonable way of determining which films were likely to contain inappropriate material for high school students. The court premised this holding on the fact that the policy was an exercise of school board discretion which required only reasonableness.

In a similar case, Krizek v. Board of Education, a teacher sought to enjoin a school district from terminating her employment contract for showing her students an R-rated film, arguing that the district's decision violated her rights under the First Amendment. The teacher had shown her students the film About Last Night, which contained sexually explicit scenes and vulgar language.

The court noted that public schools have a dual function in society: developing inquisitive minds and transmitting the mores of the community. This dual function requires a balancing of teachers' First Amendment rights in the classroom with a school's limitations on teachers' classroom speech. The court then referred to two types of cases involving teacher speech in the classroom: (1) those involving curricular decisions made by school officials and challenged by teachers; and (2) those where a teacher is disciplined for expression in the classroom. Regarding cases involving curricular decisions, the court noted broad deference is awarded to school administrators in making such decisions.

The court found the Kuhlmeier standard was the proper test for challenges against school administrators' regulation of curriculum content. Applying the standard, the court concluded the school could have made a pedagogic determination that the movie was inappropriate for the classroom, given its legitimate concern over the display of vulgarity and sexual scenes. In making this determination, the school legitimately terminated the teacher's employment for disobeying a school policy without infringing on the teacher's First Amendment rights.

As such, while the Supreme Court vigorously supports the free exchange of ideas in the classroom, public school curriculum bears the imprimatur of the state and, accordingly, the state may reasonably regulate the content of student speech related to the curriculum in the classroom. Likewise, courts have refused to recognize the classroom as a public forum during instructional time.

D. Teacher Rights

Much like student speech, teacher speech within the classroom raises constitutional considerations, particularly with regard to the First Amendment. One of the hallmarks of First Amendment protection in academia is the concept of academic freedom. Academic freedom provides teachers with First Amendment protections in the performance of their teaching duties. This freedom allow teachers to influence curriculum content and pedagogical methods. However, academic freedom is generally applied as a recognized legal concept only in higher education. As a result, teachers in public primary and secondary schools have minimal constitutional protection when making decisions about curriculum.

In fact, while courts have recognized that teachers are entitled to certain First Amendment protections in the classroom, courts permit state and local school authorities to widely regulate teacher speech within certain constitutional limits. Teachers are rarely successful in bringing First Amendment claims challenging curricular decisions. While courts have yet to adopt a coherent analysis for First Amendment protections of teacher classroom speech, a few key cases provide courts with a framework for deciding teacher challenges to curricular decisions. Courts have recognized the critical role that teachers play in developing students' attitude toward government and understanding of the role of citizens in our society, and by extension acknowledge the importance of teacher speech. However, courts have consistently held that a teacher's classroom instruction is public employee speech. Therefore, among other standards, courts have routinely applied the public employee speech doctrine and academic freedom to teacher curricular speech.

Even where teachers' First Amendment concerns are implicated, courts may uphold curricular decisions that are based on legitimate pedagogical concerns. For example, the Seventh Circuit held that a teacher's claim that a school district's prohibition on teaching a particular course violated his First and Fourteenth Amendment rights was properly dismissed based on the principle that an individual teacher has no right to ignore the directives of duly appointed education authorities. The court noted that the school district clearly demonstrated an important pedagogical interest in establishing the curriculum. Courts have consistently applied this rational basis test to curricular decisions. The state of Arizona has the potential to advance a number of legitimate pedagogical purposes, including encouraging respect between students, reducing racial and ethnic tensions, and preventing segregation and isolation of ethnic and racial minorities into ethnocentric courses.

Many courts never reach First Amendment considerations to resolve curricular disputes. In Boring v. Buncombe County Board of Education, the Fourth Circuit held a public high school teacher did not have a First Amendment right to participate in determining the school curriculum through the selection and production of a theatrical play. The plaintiff in Boring, a high school teacher, assigned her students to perform a theatrical play containing controversial material. After receiving complaints from parents, the principal requested that the teacher remove the controversial portions from the play. However, at the close of the school year, the principal requested the district to transfer the teacher to another school. After the superintendent granted this request, the teacher sued the school on a variety of grounds, including violation of her First Amendment free speech rights. On appeal, the Fourth Circuit concluded that the teacher's dispute with school officials was an ordinary employment dispute and did not constitute protected speech under the First Amendment. As such, the court noted that the school board did not need to defend its decision with a legitimate pedagogical interest since the teacher's First Amendment rights were not affected. However, the court also remarked that even if the teacher had a First Amendment right under the circumstances, school officials had articulated a legitimate pedagogical interest because the play was part of the school's curriculum.

The majority in Boring also applied the public concern test from Connick v. Myers. In Connick, the Supreme Court invoked the Pickering test and held that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters of personal interest then the First Amendment is not implicated because the matter is merely an employment dispute. In a similar case, the Fifth Circuit, applying Connick, held that a teacher's selection of a reading list was not a matter of public concern, and thus, was not protected by the First Amendment. The Fifth Circuit noted that while the concept of academic freedom has been recognized in our jurisprudence, the doctrine has never conferred upon teachers the control of public school curricula. Most courts have adopted the Seventh Circuit's approach under Garcetti v. Ceballos, where curricular speech is part of a teacher's employment responsibility and thus the First Amendment does not protect a teacher's speech that departs from the school system's adopted curriculum.

In addition to First Amendment challenges, teachers may raise due process and equal protection challenges to the Arizona ethnic studies law; specifically the due process claims of vagueness and overbreadth. The Fourteenth Amendment's Due Process clause requires that statutes provide sufficient notice of a prohibited activity. Under the vagueness doctrine, a statute is void on due process grounds if a prohibition is not clearly defined. Teachers also have a right to know what classroom speech is prohibited in a state statute. Under the vagueness doctrine, regulations must provide people of ordinary intelligence a reasonable opportunity to know what is prohibited and provide explicit standards for those who apply them. However, the Supreme Court has noted that when the Government is acting as a patron rather than as a sovereign, the consequences of imprecision are not constitutionally severe. As such, a vagueness claim brought by the Arizona teachers will likely be unsuccessful.

It is also unlikely that a court would find the Arizona law overbroad. A statute is overbroad if it burdens speech protected by the First Amendment such that the burden is substantial when compared to unprotected speech. The ethnic studies law, like most curricular decisions in schools, restricts speech only in public secondary education classrooms. Given that classroom speech is not afforded the full protection of the First Amendment, and that courts generally find the unique environment of schools require great deference to school administrators, laws that restrict speech in the classroom will likely withstand facial challenges of vagueness or over-breadth.

Teachers and students in the TUSD could also raise a claim pursuant to the Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment provides that [n]o state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws. This provision imposes a restraint on the governmental use of classifications, such as race, to create or enforce a law.

Challenges may be raised to a statute's constitutionality either on its face or as-applied. Unfortunately for the teachers, a facial challenge to the Arizona law is not likely to succeed. Under Supreme Court precedents, a facial challenge to a statute will fail unless there is no set of circumstances under which the statute is valid. As such, teachers and students in the Tucson School District are more likely to succeed in an as-applied challenge to the Arizona ethnic studies law. Under this type of challenge, the teachers in the MAS program could allege that the state discriminated against them on the basis of their national origin. Discrimination may be found only by establishing unequal treatment of people in similar circumstances. Thus, to prove an equal protection violation, the teachers must show that the state acted with the intent to discriminate against them based upon their membership in that protected class.

Teachers and students probably cannot establish a race-based equal protection claim that would warrant strict scrutiny review because there is no evidence of intentional racial discrimination. As such, a court would apply rational basis analysis, which requires the classification to be rationally related to a legitimate purpose. Tom Horne argues that the aim of the law is to prohibit ethnic studies courses that divide students by race and ethnicity. Applying rational basis analysis, a court will consider whether such a purpose is reasonably related to the pedagogical interests of the state. State and local education officials have a legitimate state interest in preventing segregation within public schools. Some commentators and school officials have made the connection between particular ethnic studies courses and segregation. A related concern for some school districts is the goal of minimizing racial conflict within the school. Thus, a court will likely uphold the ethnic studies statute in light of Arizona's pedagogical interest in establishing a curriculum for its public schools and confronting the concerns of racial and ethnic conflict and segregation.

Similarly, if a challenge is brought alleging that the contents of the curriculum are discriminatory, the state of Arizona will likely prevail because courts grant broad discretion to a state to determine the content of its curriculum. Courts have unambiguously held the Equal Protection Clause will not support a challenge to [a state's] curriculum even where its contents are allegedly discriminatory.

The Arizona ethnic studies statute raises significant constitutional questions. However, courts will likely defer to state school authorities rather than become involved in a public school curriculum policy debate. Indeed, while students, parents, and teachers may raise serious constitutional questions to the law, courts will almost certainly conclude that the statute arises in the daily operation of the school system and does not implicate the basic constitutional values necessary for judicial intervention.

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As the demography of this country changes, states may contemplate enacting laws similar to Arizona's ethnic studies ban. If so, one can only hope that wisdom will prevail. As exemplified by the discussion herein, it is highly debatable whether Arizona's statute actually prepares students for life in a culturally diverse society. However, as this analysis demonstrates, the Constitution probably provides no barrier to such statutes.



. Harry Lawrence Batschelet II Chair Professor of Educational Administration and Professor of Education and Law, Pennsylvania State University.