//  8/30/17  //  Commentary

A candidate for public office makes racially charged statements and dog-whistles on the campaign trail. Unfortunately, those statements are not disqualifying for a majority of voters, and the candidate is elected. Once in office, not only do the statements continue, the now-incumbent begins enacting and enforcing policies that are at least arguably facially neutral, yet disproportionately disadvantage the maligned group. In response, a lawsuit alleges that the enactment and enforcement of the relevant policies violate the First and Fourteenth Amendments. Then, a key question arises: how much weight, if any, should the factfinder place on the then-candidate’s campaign-trail statements, or even on comments made after assuming office but in a personal capacity? Should the court be confined to analyzing the language of the policy and official statements about it?

Of course, the previous paragraph isn’t about any of the lawsuits challenging Trump’s Executive Orders or other policies. Instead, it is about Gonzalez v. Douglas, a case concerning Arizona’s decision to force the Tucson Unified School District (TUSD) to eliminate its successful Mexican American Studies (MAS) program. This post briefly outlines the events leading up to the case – which the student plaintiffs won in a bench trial – and then discusses the district court’s forthright approach to evaluating and weighing public officials’ racist statements.

The MAS Program & Its Termination

First, a short summary of the background facts as the district court found them. The MAS program was first implemented in 1998, as part of TUSD’s work to fulfill its obligations under a consent decree aimed at de-segregating Tucson public schools. The program consisted of a series of K-12 classes focused on Mexican-American history and culture, sometimes offered from a critical race theory perspective. Importantly, one education professor who studied the program found that taking MAS classes was linked to greater academic achievement and higher graduation rates, especially for Mexican American students.

Nonetheless, the MAS program came under fire in 2006. The triggering event was apparently a speech by Dolores Huerta, delivered at Tucson High, during which she commented that “Republicans hate Latinos.” That remark prompted the state’s Deputy Superintendent of Public Instruction to come to Tucson High to deliver a response. Students silently protested during the second event; state Superintendent Tom Horne – who was offended by the protest – attributed it to the MAS program.

Following those events Horne publicly recommended that MAS be eliminated, and began lobbying for legislation that would ban the program. Eventually – and with the help of then-Senator John Huppenthal – the Arizona legislature passed a bill that prohibited classes that “promote resentment toward a race or class of people,” that were “designed primarily for pupils of a particular ethnic group,” or that “advocate ethnic solidarity instead of the treatment of pupils as individuals.” The bill also vested enforcement authority in the state Superintendent, and permitted the Department of Education to withhold up to ten percent of a district’s funding if a district refused to eliminate a class that was deemed to violate the new statute.

While the bill was being debated and enacted, both Horne and Huppenthal were running for new elected offices, and both were successful. Horne was elected Attorney General after pledging on the campaign trail to “destroy” MAS. Huppenthal was elected school Superintendent; a key tenet of his campaign was his promise to “stop La Raza,” which was understood as a promise to eliminate the MAS program. In addition, after Huppenthal was elected (but before he took his new office), he began posting anonymously on blogs; many of his comments were racially charged, including complaints about the existence of Spanish-language media in Arizona, and criticism of MAS as “the rejection of success and embracement of failure.”

On Horne’s last work day as Superintendent, he found the MAS program violated the new curriculum statute, and ordered that it be eliminated. (The finding mainly relied on the student protest described above, a handful of teacher complaints, and statements in books used in MAS courses.) Once Huppenthal was sworn into office, he backed Horne’s finding, which first required him to reject his own outside consultant’s conclusion that the MAS program did not violate the statute. Eventually, an ALJ also upheld the finding against MAS, and the school district discontinued the program. During this process, Huppenthal continued to comment anonymously on blogs about the MAS program, at one point comparing MAS to “KKK in a different color,” and referring to his “war with MAS.”

The District Court’s Analysis

The student-plaintiffs argued that the statute, as enacted and as enforced, violated their rights under the Equal Protection Clause of the Fourteenth Amendment, as well as their right to receive information under the First Amendment. Both analyses called for the court, in its role as factfinder, to assess both the legislative intent behind the statute and the Superintendent’s intent in enforcing it. To do that, the court applied the “Arlington Heights factors.”

In its Arlington Heights analysis, the Court relied on a list of procedural anomalies and other problems with the law’s enactment and enforcement. But the court also had little difficulty relying on several of Huppenthal’s anonymous blog comments, rejecting his argument that that his public or official statements were “more probative of his true intent” than his anonymous statements. (The court also noted that their anonymous nature showed “consciousness of guilt.”) Moreover, the Court looked at those comments in context, focusing on how listeners in Arizona would likely understand them – as “code words” signaling racial animus. As the district court put it: “Huppenthal’s comments describing his ‘eternal’ ‘war’ against the MAS program . . . expose his lack of interest in the welfare of TUSD students, who would be the focus of legitimate pedagogical concern if one existed. . . . Having thus ruled out any pedagogical motivation, 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.” This reality-based approach is laudable – there is no reason for a fact finder to assume that an elected official who makes racially charged remarks during his off hours has put those views aside when implementing policy, especially when that policy works to the disadvantage of a racial minority group.

Arizona was front-and-center last week, first because it was the venue for a rally at which the President told a series of lies and inveighed against the press, and then because Trump pardoned former sheriff Joe Arpaio, who was due to be sentenced for criminal contempt of court in October. But the Gonzalez decision was a piece of good news that should not be overshadowed. First, we should celebrate the decision for its substance, not least because it opens the door to reinstating a successful academic program. Second, the decision is a useful guide for courts faced with determining whether animus has infected government decisions, including in higher-profile contexts.

Disclosure: I was part of the team representing the plaintiffs in this case while it was before the Ninth Circuit (before it was remanded for trial); the Korematsu Center for Law & Equality, with which I am affiliated, represented the plaintiffs at nearly all stages of the litigation. 


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