Justice on the horizon for Mexican-American Studies

Rally attendees stand in a line showing their anti-HB2281 signs on Monday, June 26, 2017. Photo courtesy of Simon Asher/Daily Wildcat.

Curtis Acosta was concerned.

An English teacher at Tucson High School, he noticed an unsettling trend. Latino students were dropping out at a higher rate than their peers. He knew they were capable. But for some reason, they lacked the scholar’s appetite.

So, he called a meeting with fellow educators from Tucson Unified School District (TUSD) to design a new curriculum, one that would instill academic pride by teaching Latin-American culture through literature, history, government and art.  

In the fall of 1998, Mexican-American Studies (MAS) began at Tucson High. The classes quickly became ingrained in the student’s cultural identity. Test scores improved. Dropout rates fell.

It did not take long before the troubles began, first from in-house and soon after from the state’s more conservative politicians.

Public opposition to the MAS program grew as the state school superintendent and a state senator aimed to eliminate the program, calling the classes “un-American” as they tried to further their own political careers.

Early Opposition

Before the state Legislature ever concerned itself with the ethnic studies program, TUSD officials scrutinized it. 

“There was a feeling that we were not rigorous or we weren’t aligned with the standards, misinformation like that,” Acosta said. After TUSD officials evaluated the program, they eased off. 

“I think the folks from Accountability and Research at TUSD actually apologized to our director to say we didn’t think you all were doing anything that was academically challenging or rigorous,” Acosta added. 

Curtis Acosta pictured (far right) with fellow MAS educators. Photo courtesy of Richard Martinez.

Before it was shut down in 2010, about 1,300 students enrolled in 21 classes at middle and high schools throughout the district. The program reduced the dropout rate for its Latino majority students from 8.4 percent to 2 percent.

Kim Dominguez started in the program in the fall of 2001.

“I thought it sounded interesting to learn about history from a cultural perspective,” Dominguez said. “It really instilled a pride for being Chicana.”

The program operated business-as-usual for years until spring 2006, when word reached state superintendent Tom Horne that activist Dolores Huerta had spoken to students at Tucson High.

By Gage Skidmore, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=17310168
Tom Horne at the 2011 Veteran’s Day Parade in Phoenix, Arizona. Photo taken by Gage Skidmore on Nov. 11, 2011.

Three of her words troubled Horne. “Republicans hate Latinos.” From this point forward, Horne relentlessly went after the program.

A month later, he sent his deputy superintendent, Margaret Dugan, a Latina Republican, to give a speech to students to set the record straight on Republicans.  

Before coming to Tucson High, Dugan rejected students’ requests to do a question-and-answer session. That did not go over well. Students sealed their lips with tape and turned their backs on her. Some walked out, fists raised in protest.

Their actions enraged Horne, who was in attendance. The peak of his outrage came in the form of a letter to the public and he called a press conference to deliver his message. He attributed Dugan’s treatment to the teachings of the MAS program.

Students, he said, acted “rudely and in defiance of authority.” For Horne, the program stood guilty of promoting racial solidarity over individualism and “destructive ethnic chauvinism.” He exhorted the public to help him eliminate it.

“I can use my pulpit to bring out the facts, but only you can bring about change,” he wrote.

TUSD did not act upon Horne’s cries. Classes continued. However, Horne’s hostility distracted Acosta and his students.

“We got used to him going on the campaign trail and using us as a piñata to hit, for the purposes of encouraging folks to vote for him, inciting fear,” Acosta said. “I think we got on a roll, and we were then able to use all of our talents to keep pushing forward even in the most heavily contested times.”

Those Heavily Contested Times

Horne did not back away. Throughout 2007, he continued his crusade against the program. He gave two speeches to the state Legislature voicing his opposition. In a speech to the Senate Education Accountability and Reform Committee, Horne’s attacks swayed prominent Republicans, including Sen. John Huppenthal, the committee chair.

Arizona Sen. Russell Pearce, who later authored SB 1070, one of the strongest anti-immigration bills ever written, quickly joined forces. He tacked on an amendment to kill TUSD’s ethnic studies program to an unrelated Senate bill in 2008. It did not pass.

The next year, Horne wrote his own bill. Sen. Jonathan Paton introduced it. Horne targeted programs, specifically ones that “are designed primarily for pupils of a particular ethnic group” or “advocate ethnic solidarity instead of the treatment of pupils as individuals.” It also failed.

He wasn’t done yet. Horne decided to run for state attorney general, with Huppenthal lined up to replace him as school superintendent. Their next move became HB 2281, a bill resembling Horne’s previous attempts. This one passed. 

It was signed on May 11, 2010, by Gov. Jan Brewer, 20 days after she signed the infamous SB 1070. Rep. Steve Montenegro introduced the bill because, according to Horne, “the fact that he was a Hispanic was a plus in trying to get the bill passed.” The bill explicitly prohibited any courses or classes that promote the overthrow of the U.S. government, promote resentment toward a race or class of people, are designed for pupils of a particular ethnic group, or advocate ethnic solidarity instead of the treatment of pupils as individuals.

Huppenthal championed the bill in the Senate. He successfully amended it to delay the effective date to Jan. 1, 2011, when he believed he would become superintendent, and added enforcement authority to that office.

During this time, Huppenthal’s campaign echoed the anti-Latino sentiment of the bill. He spent $40,000 on radio advertisements stating his intent to “stop La Raza” if elected.

Horne referenced his battle against the MAS program in his own campaign. A video on his campaign website featured him stating, “I fought hard to get the Legislature to pass a law so that I can put a stop to (the Raza Studies program). And as the attorney general, I will give the legal aid to the Department of Education to be sure that we do put a stop to it.”  

In all this time, Horne never visited a MAS class, educators said. He had never talked to students or teachers; Horne derived his opinion solely from samples of the curriculum.

A $15 Million Gun to its Head

The day after the bill’s passage, 150 people, mostly students, walked downtown to protest a conference between Horne and TUSD officials. TUSD officials cancelled the meeting, claiming Horne had turned it into a political show. Horne came anyway.

He gave a press conference inside the state office building and denied TUSD’s allegations. Afterward, protesters poured in. Upon learning Horne had left, they staged a sit-in to demand he come back. Fifteen people were arrested. Horne never returned. 

The first appeal of HB 2281 was filed on Oct. 18, 2010. Students and their parents argued that Horne’s law violated the students’ First and 14th amendment rights. They were represented by local civil rights attorney Richard Martinez. He had followed the controversy since the program’s early years and had been a member of the program’s Community Advisory Board since its creation. One of his sons was a curriculum specialist for MAS. He monitored the controversy as it grew, up until the bill’s passage, before joining the legal battle. 

At that point, Huppenthal was a month away from being elected superintendent. Unbeknownst to the public, he was spending his time posting anonymously online. Using the pseudonyms Falcon9 and Thucydides, he thrashed MAS and uploaded anti-Latino comments on conservative political blogs.

On Dec. 14, 2010, he wrote, “No Spanish radio stations, no Spanish billboards, no Spanish TV stations, no Spanish newspapers. This is America, speak English.” For four years, he continued posting disparaging content until his behavior was made public by KPNX, a Phoenix television station.      

On Dec. 30, 2010, his last day as superintendent, Horne found the MAS program in violation of the law. He gave TUSD 60 days to get the program into compliance after Jan. 1, 2011, when the law officially took effect. If they failed, the Arizona Department of Education (ADE) would withhold 10 percent of their funding, totaling $15 million.

Two days later, Huppenthal succeeded Horne as state superintendent. The next day, he voiced his support for Horne’s takedown of the MAS program in a press release.

He commissioned Cambium Learning, Inc., an independent educational support company, to audit the MAS program to determine any law violations.

Auditors analyzed course curriculum, TUSD statistics, and visited classrooms to get testimony from a range of stakeholders. In May 2011, it found that not only did the program improve student achievement, there was no evidence to suggest it was in violation of the law.

Huppenthal rejected the findings. He cited a lack of conclusive evidence and then commissioned his own inspection team.

His team reviewed course curriculum, but never audited a class nor spoke to a teacher. In less than a month, his team concluded, based solely on review of course materials, that the program was not in compliance.

TUSD contested Huppenthal’s findings in the Arizona Office of Administrative Hearings that summer. But in December, Federal Administrative Law Judge Lewis Kowal ruled in favor of Huppenthal, finding “one or more classes designed primarily for one ethnic group, promoting racial resentment, and advocating ethnic solidarity.” Huppenthal retroactively withheld funds from the district, and demanded the removal of MAS instructional material from all classrooms.

With a $15 million gun to its head, the TUSD board voted 4-1 to end the program on Jan. 10, 2012.

“That was the bittersweet part, which was we lost it,” Acosta said. “You just don’t rub a genie lamp and bring it back, so there’s real pain and real loss. There was real sacrifice that happened due to this horrible moment of racism and discrimination upon an education program.”

Two weeks after the program ended, hundreds of students from Wakefield Middle School, Cholla High School, Pueblo High School and Tucson High School staged a walk-out of their classes in protest.

For Acosta, the students’ activism was confirmation of their belief in the program.

“It was inspiring,” Acosta said. “I think most of us can remember one of our favorite classes in high school right? Now think, would you be willing to get arrested to make sure that class remains? All of our student’s work, all the creativity they had, the civil disobedience and the nonviolent protests, were testimony to what they felt our classes were, that they were vital to their lives and the future of this community.”

Justice for Mexican-American Studies

A year later, a federal district court upheld Horne’s bill. But presiding U.S. Circuit Judge A. Wallace Tashima hinted at the presence of racial discrimination. 

“This single-minded focus on terminating the MAS (Mexican-American Studies) program, along with Horne’s decision not to issue findings against other ethnic studies programs, is at least suggestive of discriminatory intent,” Tashima concluded.

The law was not found to be discriminatory, but could still be found unconstitutional if proven to be enacted against the program with a discriminatory purpose. The question became whether Huppenthal and Horne were motivated by racism.

In 2015, he and students appealed the district court’s ruling. A panel of judges reviewed it, and agreed with the ruling that the law was not facially discriminatory. However, the panel remanded the plaintiff’s equal protection and viewpoint discrimination claims to the district court for further proceedings. 

Two years later, Noah Gonzalez, and his father, Jesus Gonzalez, also represented by Martinez, filed a case against Diane Douglas, the new superintendent. Tashima heard the case at the U.S. District Court in Tucson. The court evaluated the plaintiff’s First and 14th Amendment claims.

The court identified that TUSD’s program was the sole target of Horne and Huppenthal’s legislative effort. The defendants acknowledged that the statute was enforced only on MAS, even though two other ethnic studies programs were identified.

In addition, 90 percent of the students in the MAS program were Latino, and 60 percent of TUSD students were Latino. The court found that the enactment of the law had a “disproportionate impact on Mexican-American and other Hispanic students.”

The court also acknowledged that both Horne and Huppenthal referenced their opposition to the program in their campaigns to become state attorney general and state superintendent.

Huppenthal’s racially charged blog posts were most indicative of his motivation for eliminating the MAS program. The court recognized Huppenthal posted the comments around the same time the Legislature approved Horne’s bill.

The defense argued that Huppenthal’s private comments “do not reflect public reasons for taking action against TUSD’s MAS program.” The court refuted this claim, stating that Huppenthal’s use of anonymity showed his sense of guilt. Had Huppenthal felt his comments were appropriate, he would not have used online pseudonyms.

On Aug. 22, 2017, the court found that the statute was enacted with discriminatory intent, violating the plaintiff’s First and 14th Amendment rights. The court stated “plaintiffs have proven their First Amendment claim by proving that no legitimate pedagogical objective motivated the enactment and enforcement of A.R.S 15-112 against the MAS program.”

Acosta was proud of the community effort. “I’m glad we got the victory because it took a lot of sacrifice and a lot of stress,” Dr. Acosta said. “It’s a good moment of history, that’s for sure.”

The court has yet to settle on a remedy. 

The Anti-American Defense

While campaigning, Huppenthal and Horne frequently referred to the MAS curriculum as “un-American” and other code words to portray the program as dangerous or misaligned with education standards. Code words are defined by the court as words that “send a clear message and carry the distinct tone of racial motivations and implications” by “conveying the message that members of a particular race are disfavored.”

In addition to “un-American,” they used other code words, such as “radical” and “communist,” to portray the program in a negative way to conservative voters. The court acknowledged that they were effective because they preyed on popular concern about immigration issues and about the “Mexicanization of the state.”

Richard Martinez said the case raised the question of what it really means to be an “American.”

Richard Martinez (right) seated next to TUSD School Board member Mark Stegeman. Photo courtesy of Richard Martinez.

“The question of whiteness, white privilege, or in defense of whiteness, was all central to our case,” Martinez said.  “In which you have, and I think the evidence established very conclusively, you had state actors, both of whom were state superintendents of education, who viewed the MAS program through this white lens.

“For them, the white lens was translating to America, or being American,” he continued. “When they’re in defense of whiteness, they’ve equated this notion of whiteness with what it means to be American, what it means to act as an American, what it means to demonstrate your commitment to being American.”

For evidence of this “white lens,” Martinez pointed to a section of Horne’s 2007 letter, in which Horne referenced the way a MAS textbook portrayed the Battle of the Alamo.

Horne had pointed to one quote from Occupied America by Rodolfo Acuna: “Texans had never come to grips with the fact that Mexicans had won at the Alamo.” He claimed it was “strange” to hear an American textbook portraying the Battle of the Alamo from the Mexican perspective. This concept of “American curriculum” contributed to the spread of misinformation about the program, Martinez said.

“We end up with this very distorted view point about how this curriculum is un-American,” Martinez said. “It does a lot of things that are considered anti-American. It teaches the history of Mexican-Americans in the United States, it teaches the history of Mexico and of the United States. MAS was building upon the works of a lot different academics throughout the country, to teach a much more complete and accurate history of our country.”

Huppenthal left office in 2014. After the most recent ruling, he wrote a letter to the Arizona Daily Star, stating he was not a racist, and that his blog posts were critical of MAS and not Hispanic-Americans. Horne works for a construction law company.

Acosta is now a professor at the University of Arizona-South. He has bittersweet feelings about the loss of the program.

“It’s a wonderful story, with sad moments. One of those moments to me is, when you reflect upon, what would’ve happened if we were actually supported?” Acosta said. “We did all of this work under duress. We did all this work when folks were lobbying hate at us.

“In a dream scenario, which is what we’re working toward still, these programs are supported from the top down and from the bottom up like ours was, because ours was grassroots supported,” he continued. “We were getting the hits from the top. It would be fascinating to see the results. It would be much better than what we even produced.”

CJ D’Innocente is a reporter for Arizona Sonora News, a service from the School of Journalism with the University of Arizona. Contact him at christopherd@email.arizona.edu

Click here for a Word version of this story and high resolution photos.

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