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Case 4:10-cv-00623-AWT Document 374 Filed 02/07/17 Page 1 of 8

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6 UNITED STATES DISTRICT COURT
7 DISTRICT OF ARIZONA
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9 N O A H G O N Z L E Z ; J E S U S) No. CV 10-623 TUC AWT
GONZLEZ, his father and next friend,)
10 MANUEL BARCELO; and JULIAN) ORDER RE DEFENDANTS MOTION
BARCELO, his father and next friend, ) FOR PARTIAL SUMMARY JUDGMENT
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Plaintiffs, )
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vs. )
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14 DIANE DOUGLAS, Superintendent of)
Public Instruction, in her Official
15 Capacity, et al.,
16 Defendants.
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Before the Court is defendants motion for partial summary judgment on plaintiffs
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First Amendment claim. For the reasons that follow, the motion will be denied.1
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I. Background
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A. Challenged statute and administrative history
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In 2010, the Arizona legislature passed H.B. 2281, codified at Arizona Revised
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Statutes (A.R.S.) 15-111 and 15-112. The statute prohibits Arizona school districts
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and charter schools from offering any courses that: 1. Promote the overthrow of the
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United States government; 2. Promote resentment toward a race or class of people;
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3. Are designed primarily for pupils of a particular ethnic group; or 4. Advocate ethnic
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Also pending before the Court are the parties motions to exclude expert
28 testimony, which the Court will address in a separate order.
Case 4:10-cv-00623-AWT Document 374 Filed 02/07/17 Page 2 of 8

1 solidarity instead of the treatment of pupils as individuals. A.R.S. 15-112(A). If the


2 State Board of Education or the Superintendent of Public Instruction determines that a
3 program offered by a school district is in violation of the statute, the district has sixty
4 days to come into compliance by eliminating the program. A.R.S. 15-112(B). If it does
5 not, the Board or Superintendent may direct the Department of Education to withhold ten
6 percent of the districts state funding. Id.
7 On December 30, 2010, then-Superintendent Tom Horne issued a finding that
8 courses offered by Tucson Unified School District No. 1 (TUSD) violated A.R.S. 15-
9 112(A). The courses at issue were taught as part of TUSDs Mexican-American Studies
10 (MAS) program. On June 15, 2011, Hornes successor John Huppenthal issued a
11 second finding that TUSD was in violation of the statute. He ordered TUSD to bring the
12 MAS program into compliance. On June 22, 2011, TUSD appealed Huppenthals finding
13 to a state administrative tribunal, which ruled in favor of the Superintendent.
14 B. Procedural history
15 Plaintiffs filed the instant action on October 18, 2010, soon after the statute was
16 passed and before Horne and Huppenthal issued their findings against TUSD. Plaintiffs
17 were MAS teachers, the director of the MAS program, and TUSD students who intended
18 to take MAS classes.2 They initially asserted equal protection, free speech, and due
19 process vagueness claims, and later added claims for violation of their rights to freedom
20 of association and substantive due process. Defendants were the Superintendent of Public
21 Instruction, the Arizona State Board of Education, and members of the Board.
22 In 2013, the parties filed cross-motions for summary judgment on the free speech
23 and due process vagueness challenges. The Court had previously dismissed the free
24 association claim for failure to state a claim. Neither party moved for judgment on the
25 equal protection claim.
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The teachers and director of the MAS program were dismissed from the action
28 for lack of standing.

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1 The Court granted in part and denied in part each motion. It granted plaintiffs
2 motion with respect to Section (3) of A.R.S. 15-112(A), concluding that Section (3) is
3 overbroad in violation of the First Amendment. It denied the motion with respect to all
4 other claims, concluding that Sections (1), (2), and (4) of A.R.S. 15-112 were neither
5 overbroad nor vague. The Court granted defendants motion with respect to all of
6 plaintiffs free speech challenges except for the overbreadth challenge to A.R.S. 15-
7 112(A)(3). Finding that the issues material to plaintiffs equal protection and substantive
8 due process claims had been fully ventilated, the Court sua sponte granted summary
9 judgment for defendants on those claims as well.
10 The parties cross-appealed.3 In Arce v. Douglas, 793 F.3d 968 (9th Cir. 2015), the
11 Ninth Circuit affirmed in part, reversed in part, and remanded for further proceedings. It
12 affirmed this Courts award of summary judgment to plaintiffs on 15-112(A)(3), and
13 award of summary judgment to defendants on the overbreadth and vagueness challenges
14 to 15-112(A)(1), (2) and (4). It reversed the award of summary judgment to
15 defendants on the equal protection and First Amendment viewpoint discrimination
16 claims. As to equal protection, the Ninth Circuit concluded that plaintiffs had submitted
17 sufficient evidence to raise a dispute of fact as to whether the MAS program was
18 terminated due to racial animus. See Arce, 792 F.3d at 990. Accordingly, it reversed the
19 award of judgment and remanded that claim for trial. Id. As to viewpoint
20 discrimination, the Ninth Circuit concluded that the issue had not been briefed by either
21 of the parties in their cross-motions for summary judgment, and this Court had never
22 review[ed] the evidence bearing on the claim. Id. at 986. It therefore reversed the
23 award of judgment on that claim and remanded for further proceedings in accordance
24 with this opinion. Id. at 990.
25 Following remand, plaintiffs were permitted to amend their complaint to reflect the
26 above rulings, as well as to substitute new students as plaintiffs and new members of the
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28 Plaintiffs did not appeal the ruling on their substantive due process claim.

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1 Board as defendants. The operative compliant is the Fifth Amended Complaint, filed on
2 behalf of two TUSD students who intend to take MAS classes in the future, and against
3 Superintendent Diane Douglas, the Arizona State Board of Education, and the nine
4 current members of the Board.4 The Fifth Amended Complaint asserts two claims: an
5 equal protection claim, and a First Amendment claim for viewpoint discrimination.
6 II. Defendants motion for partial summary judgment on plaintiffs viewpoint
discrimination claim
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Defendants seek summary judgment in their favor on plaintiffs remaining First
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Amendment claim, which plaintiffs call their viewpoint discrimination claim. For the
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reasons that follow, the motion is denied.
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A. Legal framework applicable to the First Amendment claim
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Students have a First Amendment right to receive information and ideas. See
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Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 866-67 (1982) (plurality
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opinion). The right applies in the context of school curriculum design. See Monteiro v.
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Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir. 1998); Arce, 793 F.3d at
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981. The right is infringed if the state remove[s] materials otherwise available in a local
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classroom unless [that] action[] [is] reasonably related to legitimate pedagogical
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concerns. Id. at 983.
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In its 2013 summary judgment order, this Court found that A.R.S. 15-112s
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stated concern is to reduce racism in schools. Plaintiffs do not dispute that reducing
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racism in schools is a legitimate pedagogical objective. The basis of plaintiffs First
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Amendment claim is that reducing racism is only a pretextual objective of A.R.S.
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15-112, and that the statute was in fact enacted and enforced for narrowly political,
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partisan, and racist reasons.
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The Ninth Circuit has never confronted the question of whether a plaintiff can
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overcome a facially legitimate pedagogical objective by showing that it is pretextual.
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Reginald Ballantyne III, Tim Cart, Amy Hamilton, Roger Jacks, Greg Miller,
28 James Rottweiler, Jared Taylor, Rita Cheng, and Chuck Schmidt.

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1 However, defendants have not contested the legitimacy of plaintiffs legal theory, and
2 Island Trees supports plaintiffs view that pretext is a cognizable basis for a First
3 Amendment claim. In Island Trees, a four-member plurality of the Supreme Court
4 recognized that school boards discretion to determine the content of their school
5 libraries[,] . . . may not be exercised in a narrowly partisan or political manner. 457 U.S.
6 at 870. Island Trees explained that it therefore had to consider the motivation behind
7 [the boards] actions to determine whether students had been denied . . . their First
8 Amendment rights. Id. at 871. Impermissible motivations would include racial
9 animus, as well as if the board intended by their removal decision to deny [students]
10 access to ideas with which [the members of the board] disagreed. Id. (emphasis
11 omitted).
12 Although he dissented from the judgment, Justice Rehnquist cheerfully
13 concede[d] that discretion may not be exercised in a narrowly partisan or political
14 manner. Id. at 907 (internal quotation marks omitted). He also conceded that
15 impermissible motivations for removing library books include racial animus. Id.
16 Consequently, five members of the Island Trees Court subscribed to the view that the
17 First Amendment forbids school officials from removing materials from school libraries
18 to further narrowly partisan, political, or racist ends.
19 Although Island Trees concerned library materials rather than curricular materials,
20 the Ninth Circuit in Monteiro relied on Island Trees in extending the First Amendment to
21 the context of a school curriculum. 158 F.3d at 1027 n.5 (citing Island Trees, 457 U.S.
22 at 87071). Moreover, the Second, Fifth, Sixth, Eighth, and Tenth Circuits have all
23 recognized a pretext-based First Amendment claim in the school curriculum context. See
24 Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 631 (2d Cir. 2005)
25 (finding dispute of material fact on First Amendment claim, where evidence showed that
26 students poster was censored, not because it failed to respond to the assignment as the
27 teacher maintained, but because it offered a religious viewpoint); Settle v. Dickson
28 Cty. Sch. Bd., 53 F.3d 152, 155 (6th Cir. 1995) (So long as the teacher limits speech or

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1 grades speech in the classroom in the name of learning and not as a pretext for punishing
2 the student for her race, gender, economic class, religion or political persuasion, the
3 federal courts should not interfere.); Pratt v. Indep. Sch. Dist. No. 831, Forest Lake,
4 Minn., 670 F.2d 771, 773 (8th Cir. 1982) (holding school boards ban on film version of
5 Shirley Jacksons The Lottery violated the First Amendment, where the reason for
6 banning was that a majority of [the boards] members object to the films religious and
7 ideological content and wish to prevent the ideas contained in the material from being
8 expressed in the school); Axson-Flynn v. Johnson, 356 F.3d 1277, 1292-93 (10th Cir.
9 2004) ([W]e may override an educators judgment where the proffered goal or
10 methodology was a sham pretext for an impermissible ulterior motive.).
11 From these authorities, the Court concludes that it is not bound to accept Arizonas
12 stated pedagogical reasons for terminating the MAS program in determining whether
13 defendants decision to terminate the MAS program was reasonably related to legitimate
14 pedagogical concerns. Arce, 793 F.3d at 983. Instead, plaintiffs may substantiate their
15 First Amendment claim with evidence that defendants acted pursuant to impermissible
16 motivations. Bearing these principles in mind, the Court turns to defendants motion.
17 B. Plaintiffs have raised a genuine issue of material fact as to whether the
MAS Program was terminated for racist purposes
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Because plaintiffs may prove their First Amendment claim by showing that
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defendants terminated the MAS program out of racial animus, defendants motion for
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summary judgment is precluded by Arce. Arce held that plaintiffs had submitted
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sufficient evidence to raise at least a plausible inference that racial animus underlay
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passage of [A.R.S. 15-112]. 793 F.3d at 978, 979 ([T]he legislative history of 15-
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112 and the sequence of events (including the administrative history) leading to its
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enactment reasonably suggest an intent to discriminate.). Although that holding was
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rendered in the context of plaintiffs equal protection claim, the same evidence supports
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their First Amendment claim.
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Defendants make three brief arguments as to why their motion should be granted,
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1 none of which is persuasive. First, defendants argue that this Court found that the
2 purpose of the Arizona statute was to reduce racism, and that purpose is legitimate.
3 While correct, the argument is beside the point. This Court never considered whether that
4 purpose was pretextual.
5 Second, defendants argue that they are entitled to summary judgment because the
6 state administrative proceedings resulted in a decision in their favor. This Court,
7 however, is neither bound by nor required to defer to the Administrative Law Judges
8 (ALJ) findings and rulings. Defendants have not argued that those findings have
9 preclusive effect, and this suit is not an appeal from the administrative proceeding. If
10 defendants mean to argue that the termination of the MAS program was not ultimately
11 their decision because it was upheld, and thus approved, by the ALJ, they made the same
12 argument when this case was on appeal, and the Ninth Circuit rejected it. See 793 F.3d at
13 983 n. 8 (addressing argument that defendants are not responsible for the elimination of
14 the MAS curriculum, and therefore should not be liable for curricular decisions of the
15 school district). As the Ninth Circuit explained, [t]his characterization of the
16 circumstances surrounding the removal of material is artificial and ignores completely the
17 fact that former Superintendent Huppenthal directly caused, indeed ordered, TUSD to
18 remove MAS-related books from its curriculum as part of his finding. Id. The Ninth
19 Circuit concluded that there is no genuine dispute that the defendants are responsible for
20 the elimination of the program . . . and are accordingly subject to plaintiffs First
21 Amendment claims. Id. This holding, which is the law of the case, forecloses any
22 argument that the administrative process absolved defendants of wrongdoing.
23 Third, defendants argue that they are entitled to summary judgment because
24 plaintiffs equal protection and First Amendment claims are indistinguishable. The
25 argument is unpersuasive because the same government conduct may violate both the
26 First and Fourteenth Amendments. See, e.g., OSU Student Alliance v. Ray, 699 F.3d
27 1053, 1067-68 (9th Cir. 2012). That some of the same evidence goes to both claims does
28 not prevent both from being cognizable; indeed, under some circumstances, First and

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1 Fourteenth Amendment claims will rise and fall together. Id. at 1067. In any case,
2 plaintiffs First and Fourteenth Amendment claims are distinguishable. The First
3 Amendment claim can be proven by a wider range of evidence, as the Arizona statute
4 would violate the First Amendment if enacted and enforced for narrowly partisan or
5 political or racist reasons, Island Trees, 457 U.S. at 87071, whereas plaintiffs must
6 show racial animus to prove their equal protection claim.
7 III. Conclusion and Order
8 In sum, the Ninth Circuit held in Arce that plaintiffs have raised a material dispute
9 of fact as to whether defendants terminated the MAS program for racist purposes. That
10 ruling precludes summary judgment on plaintiffs First Amendment claim. None of
11 defendants arguments to the contrary is persuasive.
12 IT IS ORDERED that defendants motion for partial summary judgment is
13 DENIED.5
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15 DATED: February 6, 2017
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Because the Court does not rely on defendants Statement of Facts, Dkt. No. 356,
28 plaintiffs motion to strike portions of that document, Dkt. No. 365, is denied as moot.

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