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Jeff Biggers

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Ethnic Studies Court Emergency in Arizona: Only an Injunction Can Prevent Irreparable Harm

Posted: 11/15/11 06:53 PM ET

Less than a week before an Administrative Law Judge could make his recommendation on the fate of Arizona's controversial Ethnic Studies ban, plaintiffs for the acclaimed Ethnic Studies/Mexican American Studies program in Tucson filed a motion for a preliminary injunction yesterday in a federal district court, seeking a court order to halt any immediate crackdown.

The motion charges that the "vagueness and overbreadth" of the Ethnic Studies ban and "its enforcement by Superintendents (John) Huppenthal and (Tom) Horne violate the plaintiffs' constitutional rights," and adds that "statute and its application violate the plaintiffs' rights to Equal Protection, Free Speech and Substantive Due Process."

Despite overwhelming local and national support for the embattled Mexican American Studies program, which was praised by an independent audit for its inclusiveness and high graduation rates and found in compliance with the state's extremist law, Huppenthal has openly maintained his intention to terminate the program or withhold $15 million from the Tucson Unified School District, regardless of the Administrative Law Judge's findings.

"Enforcement action is underway and nearing to a close," the motion stresses. "As a direct result, elimination of the Mexican American Studies ("MAS") program is imminent. Cognizable constitutional harm has and continues to be inflicted upon the plaintiffs, which will only increase in severity if the enforcement action undertaken remains unchecked."

The increasingly erratic Huppenthal, a Tea Party extremist with no educational background, who campaigned in 2010 on a platform to "stop la raza" or Mexicans, recently compared the acclaimed Mexican American Studies program to Hitler's paramilitary Jugend. Huppenthal refused to apologize for the comment, though he later offered a formal apology for comparing "known homosexuals" to neo-Nazi's. Former Superintendent Tom Horne, the current Attorney General, also invoked violent imagery earlier this summer in his calls to "destroy" Mexican American Studies in Arizona.

According to the motion: "The urgency with which the plaintiffs seek this preliminary injunction is entirely generated by Superintendent Huppenthal. Since issuing his Finding on June 15, 2011, he has vigorously prosecuted this enforcement action and consistently indicated that he will act to eliminate this program. The plaintiffs recently proposed a stipulation by which Superintendent Huppenthal would agree to stay any enforcement action until such time as the Court rules on the merits of the plaintiffs' claims. Superintendent Huppenthal rejected that offer."

In a stunning breakdown of the state's obsessive witch hunt, which has drawn condemnation from across the country, the motion delineates several areas of discrimination against Tucson's Latino community, noting that that Superintendents Huppenthal and Horne "have taken steps to shut down only the MAS program; thus they discriminate on the basis of the choice made by Latino students and educators to enroll and work in a program that is designed to improve the academic success of Latinos through the study of the Mexican American perspective of history, literature and art."

Declaring that time "is in short order," the motion outlines the "substantial negative effects" of Huppenthal's actions on the Mexican American Studies program and on the plaintiffs, and appeals, "only an injunction can prevent irreparable Harm."

The motion concludes:


Among the many flaws contained in HB 2281 is the unmistakable message to our youth that the promise of the Constitution to protect them all equally is a myth; that the history, literature and culture of at least one group is not worthy of being taught in school. If the State of Arizona can take away the right of students to learn about the historical, literary and artistic contributions of Mexican Americans to the American experience, then the Constitution is a hollow document. The fact that the teachers "are educating the young for citizenship is a reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." Whatever legitimate role the State may have in setting curriculum standards in Arizona, it must be "within the limits of the Bill of Rights." This is the fundamental requirement that HB 2281 and its application fails to meet.

Plaintiffs do not seek the intervention of this Court to controvert or supersede the legitimate role of the local Governing Board to make curricular decisions. To the contrary, plaintiffs seek to preserve the role of the elected officials of TUSD to decide what curriculum is appropriate and necessary and beneficial for its student population.